Chapter 14.04
CRITICAL AREA REGULATIONS

Sections:

Article I. Purpose and General Provisions

14.04.005    Definitions.

14.04.010    Purpose and goals.

14.04.020    Authority.

14.04.030    Relationship to other regulations.

14.04.040    Administrative procedures.

14.04.050    Fees.

14.04.060    Administrative rules.

14.04.070    Interpretation.

14.04.080    Jurisdiction – Critical areas.

14.04.090    Protection of critical areas.

Article II. Best Available Science

14.04.100    Best available science.

Article III. Applicability, Exemptions, and Exceptions

14.04.110    Applicability.

14.04.120    Exemptions.

14.04.130    Exception – Public agency and utility.

14.04.140    Exception – Reasonable use.

Article IV. Allowed Activities

14.04.150    Allowed activities.

Article V. Critical Area Project Review Process

14.04.160    General requirements.

14.04.170    Critical area identification form.

14.04.180    Public notice of initial determination.

Article VI. Critical Areas Report

14.04.190    Critical areas report – Requirements.

14.04.200    Critical areas report – Modifications to requirements.

14.04.210    Mitigation sequencing.

14.04.220    Mitigation requirements.

14.04.230    Mitigation plan requirements.

Article VII. Determination Process

14.04.240    Critical areas alteration permit (CAAP).

Article VIII. Variances

14.04.250    Variances.

Article IX. Unauthorized Alterations and Enforcement

14.04.260    Unauthorized critical areas alterations and enforcement.

Article X. General Critical Areas Protective Measures

14.04.270    Critical area markers and signs.

14.04.280    Notice on title.

14.04.290    Critical area tracts.

14.04.300    Building setbacks.

14.04.310    Bonds to ensure mitigation, maintenance, and monitoring.

14.04.320    Critical area inspections.

Article XI. Wetlands

14.04.500    Designation, rating, and mapping wetlands.

Allowed Activities

14.04.510    Activities allowed in wetlands.

Additional Report Requirements

14.04.520    Critical areas report – Additional requirements for wetlands.

Performance Standards

14.04.530    Performance standards – General requirements.

14.04.540    Performance standards – Compensatory mitigation requirements.

14.04.550    Performance standards – Subdivisions.

Article XII. Critical Aquifer Recharge Areas

Designation and Mapping

14.04.600    Designation of critical aquifer recharge areas.

Additional Report Requirements

14.04.610    Critical areas report – Additional requirements for critical aquifer recharge areas.

Performance Standards

14.04.620    General requirements.

Article XIII. Frequently Flooded Areas

14.04.700    Designation of frequently flooded areas.

14.04.710    Findings and intent.

14.04.720    Administration.

14.04.730    Relationship to other critical areas regulations.

14.04.740    Information to be obtained and maintained.

14.04.750    Other agencies.

14.04.760    Development regulations.

Article XIV. Geologically Hazardous Areas

Designation, Classification, and Mapping

14.04.800    Designation of geologically hazardous areas.

14.04.810    Designation of specific hazard areas.

14.04.820    Classification of geologically hazardous areas.

14.04.830    Mapping of geologically hazardous areas.

Allowed Activities

14.04.840    Activities allowed in geologically hazardous areas.

Critical Areas Report Requirements

14.04.850    Critical areas report – Additional requirements for geologically hazardous areas.

14.04.860    Critical areas report – Additional technical information requirements for specific hazards.

Performance Standards

14.04.870    Performance standards – General requirements.

14.04.880    Performance standards – Specific hazards.

Article XV. Fish and Wildlife Habitat Areas

Designation and Mapping

14.04.900    Designation of fish and wildlife habitat conservation areas.

Additional Report Requirements

14.04.910    Critical areas report – Additional requirements for habitat conservation areas.

Performance Standards

14.04.920    Performance standards – General requirements.

14.04.930    Performance standards – Specific habitats.

Article I. Purpose and General Provisions

14.04.005 Definitions.

Words not defined in this chapter shall be as defined in the city code, the Washington Administrative Code, or the Revised Code of Washington. Words not found in either code shall be as defined in the Webster’s Third New International Dictionary, latest edition.

A

“Active fault” means a fault that is considered likely to undergo renewed movement within a period of concern to humans. Faults are commonly considered to be active if the fault has moved one or more times in the last 10,000 years, but faults may also be considered active in some cases if movement has occurred in the last 500,000 years.

“Adaptive management” relies on scientific methods to evaluate how well regulatory and nonregulatory actions protect the critical area. An adaptive management program is a formal and deliberate scientific approach to taking action and obtaining information in the face of uncertainty.

“Adjacent” means immediately adjoining (in contact with the boundary of the influence area) or within a distance that is less than that needed to separate activities from critical areas to ensure protection of the functions and values of the critical areas. Adjacent shall mean any activity or development located:

A.    On a site immediately adjoining a critical area;

B.    A distance equal to or less than the required critical area buffer width and building setback;

C.    A distance equal to or less than 300 feet upland from a stream, wetland, or water body;1

D.    Bordering or within the floodway, floodplain, or channel migration zone; or

E.    A distance equal to or less than 200 feet from a critical aquifer recharge area.2

“Advance mitigation” means mitigation of an anticipated critical area impact or hazard completed according to an approved critical areas report and prior to site development.

“Agricultural land” means land primarily devoted to the commercial production of horticultural, viticultural, floricultural, dairy, apiary, or animal products or of berries, grain, hay, straw, turf, seed, Christmas trees not subject to the excise tax imposed by RCW 84.33.100 through 84.33.140, or livestock, and/or that has been designated as long-term commercial significance for agricultural production.

“Alteration” means any human induced change in an existing condition of a critical area or its buffer. Alterations include, but are not limited to grading, filling, channelizing, dredging, clearing (vegetation), construction, compaction, excavation, or any other activity that changes the character of the critical area.

“Anadromous fish” means fish that spawn and rear in freshwater and mature in the marine environment.

“Applicant” means a person who files an application for permit under this chapter and who is either the owner of the land on which that proposed activity would be located, a contract purchaser, or the authorized agent of such a person.

“Aquifer” means a geological formation, group of formations, or part of a formation that is capable of yielding a significant amount of water to a well or spring.

“Aquifer, confined” means an aquifer bounded above and below by beds of distinctly lower permeability than that of the aquifer itself and that contains groundwater under sufficient pressure for the water to rise above the top of the aquifer.

“Aquifer recharge areas” means areas that, due to the presence of certain soils, geology, and surface water, act to recharge groundwater by percolation.

“Aquifer, sole source” means an area designated by the U.S. Environmental Protection Agency under the Safe Drinking Water Act of 1974, Section 1424(e). The aquifer(s) must supply 50 percent or more of the drinking water for an area without a sufficient replacement available.

“Aquifer susceptibility” means the ease with which contaminants can move from the land surface to the aquifer based solely on the types of surface and subsurface materials in the area. Susceptibility usually defines the rate at which a contaminant will reach an aquifer unimpeded by chemical interactions with the vadose zone media.

“Aquifer, unconfined” means an aquifer not bounded above by a bed of distinctly lower permeability than that of the aquifer itself and containing groundwater under pressure approximately equal to that of the atmosphere. This term is synonymous with the term “water table aquifer.”

“Area of shallow flooding” means an area designated AO or AH Zone on the flood insurance map(s). The base flood depths range from one to three feet; a clearly defined channel does not exist; the path of flooding is unpredictable and indeterminate; and velocity flow may be evident. AO is characterized as sheet flow and AH indicates ponding.

B

“Base flood” means a flood having a one percent chance of being equaled or exceeded in any given year. It is also referred to as the “100-year” flood. The base flood is determined for existing conditions unless a basin plan with projected flows under future development conditions has been completed and adopted by the city of Bothell. Designations on FIRM maps always include the letters “A” or “V.”

“Base flood elevation” means the water surface elevation of the base flood. It shall be referenced to the National Geodetic Vertical Datum of 1929.

“Basement” means that portion of a story partly underground and having at least one-half of its height or more than five feet below the adjoining finish grade.

“Best available science” means current scientific information used in the process to designate, protect, or restore critical areas, that is derived from a valid scientific process as defined by WAC 365-195-900 through 365-195-925. Sources of the best available science are included in Citations of Recommended Sources of Best Available Science for Designating and Protecting Critical Areas published by the Washington State Department of Community, Trade and Economic Development.

“Best management practices (BMPs)” means conservation practices or systems of practices and management measures that:

A.    Control soil loss and reduce water quality degradation caused by high concentrations of nutrients, animal waste, toxics, and sediment;

B.    Minimize adverse impacts to surface water and groundwater flow and circulation patterns and to the chemical, physical, and biological characteristics of wetlands;

C.    Protect trees and vegetation designated to be retained during and following site construction and use native plant species appropriate to the site for re-vegetation of disturbed areas; and

D.    Provide standards for proper use of chemical herbicides within critical areas.

The city shall monitor the application of best management practices to ensure that the standards and policies of this chapter are adhered to.

“Biodiversity” means the variety of animal and plant life and its ecological processes and interconnections – represented by the richness of ecological systems and the life that depends on them, including human life and economies.

“Breakaway wall” means a wall that is not part of the structural support of the building and is intended through its design and construction to collapse under specific lateral loading forces, without causing damage to the elevated portion of the building or supporting foundation system.

“Buffer” or “buffer zone” means an area that is contiguous to and protects a critical area which is required for the continued maintenance, functioning, and/or structural stability of a critical area.

C

“Channel migration zone (CMZ)” means the lateral extent of likely movement along a stream or river during the next 100 years as determined by evidence of active stream channel movement over the past 100 years. Evidence of active movement over the 100-year time frame can be inferred from aerial photos or from specific channel and valley bottom characteristics. The time span typically represents the time it takes to grow mature trees that can provide functional large woody debris to streams. A CMZ is not typically present if the valley width is generally less than two bankfull widths, if the stream or river is confined by terraces, no current or historical aerial photographic evidence exists of significant channel movement, and there is no field evidence of secondary channels with recent scour from stream flow or progressive bank erosion at meander bends. Areas separated from the active channel by legally existing artificial channel constraints that limit bank erosion and channel avulsion without hydraulic connections shall not be considered within the CMZ.

“Compensation project” means actions necessary to replace project-induced critical area and buffer losses, including land acquisition, planning, construction plans, monitoring, and contingency actions.

“Compensatory mitigation” means replacing project-induced losses or impacts to a critical area, and includes, but is not limited to, the following:

A.    “Restoration” means actions performed to reestablish wetland functional characteristics and processes that have been lost by alterations, activities, or catastrophic events within an area that no longer meets the definition of a wetland.

B.    “Creation” means actions performed to intentionally establish a wetland at a site where it did not formerly exist.

C.    “Enhancement” means actions performed to improve the condition of existing degraded wetlands so that the functions they provide are of a higher quality.

D.    “Preservation” means actions taken to ensure the permanent protection of existing, high-quality wetlands.

“Compensatory storage” means new, excavated storage volume equivalent to any flood storage capacity which has been or would be eliminated by filling or grading within the flood fringe. “Equivalent” shall mean that the storage removed shall be replaced by equal volume between corresponding one-foot contour intervals that are hydraulically connected to the floodway through their entire depth.

“Conservation easement” means a legal agreement that the property owner enters into to restrict uses of the land. Such restrictions can include, but are not limited to, passive recreation uses such as trails or scientific uses and fences or other barriers to protect habitat. The easement is recorded on a property deed, runs with the land, and is legally binding on all present and future owners of the property, therefore, providing permanent or long-term protection.

“Critical aquifer recharge area” means areas designated by WAC 365-190-080(2) that are determined to have a critical recharging effect on aquifers used for potable water as defined by WAC 365-190-030(2).

“Critical area tract” means land held in private ownership and retained in an open condition in perpetuity for the protection of critical areas. Lands within this type of dedication may include but are not limited to portions and combinations of forest habitats, grasslands, shrub steppe, on-site watersheds, 100-year floodplains, shorelines or shorelines of statewide significance, riparian areas, and wetlands.

“Critical areas” include any of the following areas or ecosystems: aquifer recharge areas, fish and wildlife habitat conservation areas, frequently flooded areas, geologically hazardous areas, and wetlands, as defined in Chapter 36.70A RCW and this chapter.

“Critical facility” means a facility for which even a slight chance of flooding, inundation, or impact from a hazard event might be too great. Critical facilities include, but are not limited to, schools, nursing homes, hospitals, police, fire and emergency response installations, and installations that produce, use, or store hazardous materials or hazardous waste.

“Critical species” means all animal and plant species listed by the state or federal government as threatened or endangered.

“Cumulative impacts or effects” means the combined, incremental effects of human activity on ecological or critical areas functions and values. Cumulative impacts result when the effects of an action are added to or interact with other effects in a particular place and within a particular time. It is the combination of these effects, and any resulting environmental degradation, that should be the focus of cumulative impact analysis and changes to policies and permitting decisions.

D

“Developable area” means a site or portion of a site that may be utilized as the location of development, in accordance with the rules of this chapter.

“Development,” for the purposes of this chapter, shall mean any activity upon the land consisting of construction or alteration of structures, earth movement, dredging, dumping, grading, filling, mining, removal of any sand, gravel, or minerals, driving of piles, drilling operations, bulk heading, clearing of vegetation, or other land disturbance. Development includes the storage or use of equipment or materials inconsistent with the existing use. Development also includes approvals issued by the city that binds land to specific patterns of use, including but not limited to, subdivisions, short subdivisions, zone changes, conditional use permits, and binding site plans. Development activity does not include the following activities:

A.    Interior building improvements.

B.    Exterior structure maintenance activities, including painting and roofing.

C.    Routine landscape maintenance of established, ornamental landscaping, such as lawn mowing, pruning, and weeding.

D.    Maintenance of the following existing facilities that does not expand the affected area: septic tanks (routine cleaning); wells; individual utility service connections; and individual cemetery plots in established and approved cemeteries.

“Development permit” means any permit issued by the city, or other authorized agency, for construction, land use, or the alteration of land.

“Director” means the community development director or the public works director, as specified in the applicable regulation.

E

“Elevated building” means a building that has no basement and its lowest elevated floor is raised above ground level by foundation walls, shear walls, post, piers, pilings, or columns.

“Emergent wetland” means a wetland with at least 30 percent of the surface area covered by erect, rooted, herbaceous vegetation extending above the water surface as the uppermost vegetative strata.

“Erosion” means the process whereby wind, rain, water, and other natural agents mobilize and transport particles.

“Erosion hazard areas” means those areas identified by the U.S. Department of Agriculture National Resources Conservation Service as having a “moderate to severe,” “severe” or “very severe” rill and inter-rill erosion hazard and/or those areas containing soils which, according to the USDA Soil Conservation Service Soil Classification System, may experience severe to very severe erosion hazard.

“Exotic” means any species of plants or animals which are foreign to the planning area.

“Extirpate” means to destroy completely, or wipe out.

F

“Fish and wildlife habitat conservation areas” means areas necessary for maintaining species in suitable habitats within their natural geographic distribution so that isolated subpopulations are not created as designated by WAC 365-190-080(5). These areas include:

A.    Areas with which state or federally designated endangered, threatened, and sensitive species have a primary association;

B.    Habitats of local importance, including but not limited to areas designated as priority habitat by the Washington State Department of Fish and Wildlife;

C.    Naturally occurring ponds under 20 acres and their submerged aquatic beds that provide fish or wildlife habitat, including those artificial ponds intentionally created from dry areas in order to mitigate impacts to ponds;

D.    Waters of the state, including lakes, rivers, ponds, streams, inland waters, underground waters, and all other surface waters and watercourses within the jurisdiction of the state of Washington;

E.    Lakes, ponds, streams, and rivers planted with game fish by a governmental or tribal entity;

F.    State natural area preserves and natural resource conservation areas; and

G.    Land essential for preserving connections between habitat blocks and open spaces.

“Flood” or “flooding” means a general and temporary condition of partial or complete inundation of normally dry land areas from the overflow of inland waters and/or the unusual and rapid accumulation of runoff of surface waters from any source.

“Flood insurance map” means the official map on which the Federal Insurance Administration has delineated the areas of special flood hazards and include the risk premium zones applicable to the community. Also known as “flood insurance rate map” or “FIRM.”

“Flood insurance study” means the official report provided by the Federal Insurance Administration that includes flood profiles, the flood boundary-floodway map, and the water surface elevation of the base flood.

“Floodplain” means the total land area adjoining a river, stream, watercourse, or lake subject to inundation by the base flood.

“Flood protection elevation” means an elevation that is one foot above the elevation of the “100-year” flood.

“Flood resistant material” means materials designed to be resistant to the impacts associated with flooding and defined and described in detail in the Federal Emergency Management Agency’s Technical Bulletin #2-93, 1993 and FEMA publication FEMA-348, Protecting Building Utilities from Flood Damage.

“Floodway” means the channel of a river or other watercourse and the adjacent land area that must be reserved in order to discharge the base flood without cumulatively increasing the surface water elevation more that one foot. Also known as the “zero rise floodway.”

“Forested wetland” means a wetland with at least 30 percent of the surface area covered by woody vegetation greater than 20 feet in height that is at least partially rooted within the wetland.

“Formation” means an assemblage of earth materials grouped together into a unit that is convenient for description or mapping.

“Formation, confining” means the relatively impermeable formation immediately overlying a confined aquifer.

“Frequently flooded areas” or “flood hazard areas” are lands in the floodplain subject to a one percent or greater chance of flooding in any given year. These areas could include, but are not limited to, streams, lakes, wetlands and their associated floodplains, flood fringes or the Federal Emergency Management Agency floodway. A flood hazard area consists of the following components which shall be determined through a required special study or other available floodplain data.

A.    “Floodplain” means the total area subject to inundation by the base flood.

B.    “Flood fringe” means that portion of the floodplain outside of the FEMA floodway which is covered by floodwaters during the base flood; it is generally associated with standing water rather than rapidly flowing water.

C.    “Federal Emergency Management Agency (FEMA) floodway” means the channel of the stream and that portion of the adjoining floodplain which is necessary to contain and discharge the base flood flow without increasing the base flood elevation more than one foot.

“Functions and values” means the beneficial roles served by critical areas including, but not limited to, water quality protection and enhancement; fish and wildlife habitat; food chain support; flood storage, conveyance and attenuation; groundwater recharge and discharge; erosion control; wave attenuation; protection from hazards; historical, archaeological, and aesthetic value protection; educational opportunities; and recreation. These beneficial roles are not listed in order of priority. Critical area functions can be used to help set targets (species composition, structure, etc.) for managed areas, including mitigation sites.

G

“Geologically hazardous areas” means areas that may not be suited to development consistent with public health, safety, or environmental standards, because of their susceptibility to erosion, sliding, earthquake, or other geological events as designated by WAC 365-190-080(4). Types of geologically hazardous areas include erosion, landslide, and seismic hazards.

“Groundwater” means water in a saturated zone or stratum beneath the surface of land or a surface water body.

“Groundwater management area” means a specific geographic area or subarea designated pursuant to Chapter 173-100 WAC for which a groundwater management program is required.

“Groundwater management program” means a comprehensive program designed to protect groundwater quality, to ensure groundwater quantity, and to provide for efficient management of water resources while recognizing existing groundwater rights and meeting future needs consistent with local and state objectives, policies, and authorities within a designated groundwater management area or subarea and developed pursuant to Chapter 173-100 WAC.

“Groundwater, perched” means groundwater in a saturated zone is separated from the underlying main body of groundwater by an unsaturated rock zone.

“Growth Management Act” means Chapters 36.70A and 36.70B RCW, as amended.

H

“Habitat conservation areas” means areas designated as fish and wildlife habitat conservation areas.

“Habitats of local importance” areas include a seasonal range or habitat element with which a given species has a primary association, and which, if altered may reduce the likelihood that the species will maintain and reproduce over the long-term. These might include areas of high relative density or species richness, breeding habitat, winter range, and movement corridors. These might also include habitats that are of limited availability or high vulnerability to alterations such as cliffs, talus, and wetlands. (WAC 365-190-030)

“Hazard areas” means areas designated as frequently flooded areas or geologically hazardous areas due to potential for erosion, landslide, seismic activity, mine collapse, or other geological condition.

“Hazardous substances” means any liquid, solid, gas, or sludge, including any material, substance, product, commodity, or waste, regardless of quantity, that exhibits any of the physical, chemical, or biological properties described in WAC 173-303-090 or 173-303-100.

“High intensity land use” means land uses which are associated with high levels of human disturbance or substantial habitat impacts including, but not limited to, medium- and high-density residential (more than one home per five acres), multifamily residential, some agricultural practices, and commercial and industrial land uses.

“High quality wetlands” means those wetlands that meet the following criteria:

A.    No, or isolated, human alteration of the wetland topography;

B.    No human-caused alteration of the hydrology or the wetland appears to have recovered from the alteration;

C.    Low cover and frequency of exotic plant species;

D.    Relatively little human-related disturbance of the native vegetation, or recovery from past disturbance;

E.    If the wetland system is degraded, it still contains a viable and high quality example of a native wetland community; and

F.    No known major water quality problems.

“Historic condition” means condition of the land, including flora, fauna, soil, topography, and hydrology that existed before the area and vicinity were developed or altered by human activity.

“Hydraulic project approval (HPA)” means a permit issued by the Washington State Department of Fish and Wildlife for modifications to waters of the state in accordance with Chapter 75.20 RCW.

“Hydric soil” means a soil that is saturated, flooded, or ponded long enough during the growing season to develop anaerobic conditions in the upper part. The presence of hydric soil shall be determined following the methods described in the Washington State Wetland Identification and Delineation Manual.

“Hydrologic soil groups” means soils grouped according to their runoff-producing characteristics under similar storm and cover conditions. Properties that influence runoff potential are depth to seasonally high water table, intake rate and permeability after prolonged wetting, and depth to a low permeable layer. Hydrologic soil groups are normally used in equations that estimate runoff from rainfall, but can be used to estimate a rate of water transmission in soil. There are four hydrologic soil groups:

A.    Low runoff potential and a high rate of infiltration potential;

B.    Moderate infiltration potential and a moderate rate of runoff potential;

C.    Slow infiltration potential and a moderate to high rate of runoff potential; and

D.    High runoff potential and very slow infiltration and water transmission rates.

“Hydrophytic vegetation” means macrophytic plant life growing in water or on a substrate that is at least periodically deficient in oxygen as a result of excessive water content. The presence of hydrophytic vegetation shall be determined following the methods described in the Washington State Wetland Identification and Delineation Manual.

“Hyporheic zone” means the saturated zone located beneath and adjacent to streams that contains some portion of surface waters, serves as a filter for nutrients, and maintains water quality.

I

“Impact” means the effects or consequences of actions, inclusive of adverse and beneficial effects or consequences to critical areas and their associated buffers.

“Impact, adverse” means the effects or consequences of actions, activities, construction and programs that injure, endanger, degrade or result in the loss of functions and values of a critical area or areas and their associated buffers.

“Impervious surface” means a hard surface area which either prevents or retards the entry of water into the soil mantle as under natural conditions prior to development, and/or a hard surface area which causes water to run off the surface in greater quantities or at an increased rate of flow from the flow present under natural conditions prior to development. Common impervious surfaces include, but are not limited to, roof tops, walkways, patios, driveways, parking lots or storage areas, concrete or asphalt paving, gravel roads, packed earthen materials, and oiled, macadam or other surfaces which similarly impede the natural infiltration of storm water. Open, uncovered retention/detention facilities, turf, landscaping and natural vegetation shall not be considered as impervious surfaces.

“In-kind compensation” means to replace critical areas with substitute areas whose characteristics and functions closely approximate those destroyed or degraded by a regulated activity. It does not mean replacement “in category.”

“Infiltration” means the downward entry of water into the immediate surface of soil.

Injection Well(s).

A.    “Class I” means a well used to inject industrial, commercial, or municipal waste fluids beneath the lowermost formation containing, within one-quarter mile of the well bore, an underground source of drinking water.

B.    “Class II” means a well used to inject fluids:

1.    Brought to the surface in connection with conventional oil or natural gas exploration or production and may be commingled with wastewaters from gas plants that are an integral part of production operations, unless those waters are classified as dangerous wastes at the time of injection;

2.    For enhanced recovery of oil or natural gas; or

3.    For storage of hydrocarbons that are liquid at standard temperature and pressure.

C.    “Class III” means a well used for extraction of minerals, including but not limited to the injection of fluids for:

1.    In-situ production of uranium or other metals that have not been conventionally mined;

2.    Mining of sulfur by Frasch process; or

3.    Solution mining of salts or potash.

D.    “Class IV” means a well used to inject dangerous or radioactive waste fluids.

E.    “Class V” means all injection wells not included in Classes I, II, III, or IV.

“Inter-rill” means areas subject to sheet wash.

“Isolated wetlands” means those wetlands that are outside of and not contiguous to any 100-year floodplain of a lake, river, or stream and have no contiguous hydric soil or hydrophytic vegetation between the wetland and any surface water.

J

“Joint aquatic resource permits application” means a single application form that may be used to apply for hydraulic project approvals, shoreline management permits, approvals of exceedance of water quality standards, water quality certifications, Coast Guard bridge permits, Washington State Department of Natural Resources use authorization, and U.S. Army Corps of Engineers permits.

L

“Landslide hazard areas” means areas that are potentially subject to risk of mass movement due to a combination of geologic landslide resulting from a combination of geologic, topographic, and hydrologic factors. These areas are typically susceptible to landslides because of a combination of factors including: bedrock, soil, slope gradient, slope aspect, geologic structure, groundwater, or other factors.

“Low intensity land use” means land uses which are associated with low levels of human disturbance or low habitat impacts, including, but not limited to, passive recreation, open space, or forest management land uses.

“Lowest floor” means the lowest floor of the lowest enclosed area, including the basement. An unfinished or flood resistant enclosure, usable solely for parking of vehicles, building access, or storage in an area other than a basement area, which is not considered a building’s lowest floor; provided, that such enclosure is not built so as to render the structure in violation of the applicable requirements of this chapter.

M

“Manufactured home,” as defined under WAC 296-150M-0020, means a single-family dwelling unit built according to the United States Department of Housing and Urban Development (HUD) Manufactured Home Construction and Safety Standards Act, which is a national, preemptive building code.

“Mitigation” means avoiding, minimizing, or compensating for adverse critical areas impacts. Mitigation, in the following sequential order of preference, is:

A.    Avoiding the impact altogether by not taking a certain action or parts of an action;

B.    Minimizing impacts by limiting the degree or magnitude of the action and its implementation, by using appropriate technology, or by taking affirmative steps, such as project redesign, relocation, or timing, to avoid or reduce impacts;

C.    Rectifying the impact to wetlands, critical aquifer recharge areas, and habitat conservation areas by repairing, rehabilitating, or restoring the affected environment to the conditions existing at the time of the initiation of the project;

D.    Minimizing or eliminating the hazard by restoring or stabilizing the hazard area through engineered or other methods;

E.    Reducing or eliminating the impact or hazard over time by preservation and maintenance operations during the life of the action;

F.    Compensating for the impact to wetlands, critical aquifer recharge areas, and habitat conservation areas by replacing, enhancing, or providing substitute resources or environments; and

G.    Monitoring the hazard or other required mitigation and taking remedial action when necessary.

Mitigation for individual actions may include a combination of the above measures.

“Mobile/manufactured home park or subdivision” means a parcel (or contiguous parcels) of land divided into two or more mobile and/or manufactured home lots for rent or sale.

“Moderate intensity land use” means land uses which are associated with moderate levels of human disturbance or substantial habitat impacts including, but not limited to, low-density residential (no more than one home per five acres), active recreation, and moderate agricultural land uses.

“Monitoring” means evaluating the impacts of development proposals on the biological, hydrological, and geological elements of such systems, and assessing the performance of required mitigation measures throughout the collection and analysis of data by various methods for the purpose of understanding and documenting changes in natural ecosystems and features, including gathering baseline data.

N

“Native vegetation” means plant species that are indigenous to the area in question.

“Native growth protection area (NGPA)” means an area where native vegetation is preserved for the purpose of preventing harm to property and the environment, including, but not limited to, controlling surface water runoff and erosion, maintaining slope stability, buffering, and protecting plants and animal habitat;

“Natural waters” means waters, excluding water conveyance systems that are artificially constructed and actively maintained for irrigation.3

“Nonconformity” means a use of land or a structure which was lawful when established and which does not now conform to the use regulations of the zone in which it is located. A use shall be considered established if it conformed to applicable zoning regulations at any time, or when it has commenced under permit, a permit for the use has been granted and has not expired, or a structure to be occupied by the use is substantially underway as defined in the International Building Code.

“Non-indigenous.” See “Exotic.”

O

“Off-site compensation” means to replace critical areas away from the site on which a critical area has been impacted.

“On-site compensation” means to replace critical areas at or adjacent to the site on which a critical areas has been impacted.

“Ordinary high water mark (OHM)” means that mark which is found by examining the bed and banks and ascertaining where the presence and action of waters are so common and usual, and so long continued in all ordinary years, that the soil has a character distinct from that of the abutting upland in respect to vegetation.

“Out-of-kind compensation” means to replace critical areas with substitute critical areas whose characteristics do not closely approximate those destroyed or degraded. It does not refer to replacement “out-of-category.”

P

“Perched groundwater.” See “Groundwater, perched.”

“Permeability” means the capacity of an aquifer or confining bed to transmit water. It is a property of the aquifer or confining bed and is independent of the force causing movement.

“Porous soil types” means soils, as identified by the National Resources Conservation Service, U.S. Department of Agriculture, that contain voids, pores, interstices, or other openings which allow the passing of water.

“Potable water” means water that is safe and palatable for human use.

“Practical alternative” means an alternative that is available and capable of being carried out after taking into consideration cost, existing technology, and logistics in light of overall project purposes, and has less impacts to critical areas.

“Primary association area” means the area used on a regular basis by, is in close association with, or is necessary for the proper functioning of the habitat of a critical species. “Regular basis” means that the habitat area is normally or usually known to contain a critical species or, based on known habitat requirements of the species, the area is likely to contain the critical species. Regular basis is species and population dependent. Species that exist in low numbers may be present infrequently yet rely on certain habitat types.

“Priority habitat” means habitat type or elements with unique or significant value to one or more species as classified by the state Department of Fish and Wildlife. A priority habitat may consist of a unique vegetation type or dominant plant species, a described successional stage, or a specific structural element.4

“Project area” means all areas within 50 feet of the area proposed to be disturbed, altered, or used by the proposed activity or the construction of any proposed structures. When the action binds the land, such as a subdivision, short subdivision, binding site plan, planned unit development, or rezone, the project area shall include the entire parcel, at a minimum.

Q

“Qualified professional” means a person with experience and training in the pertinent scientific discipline, and who is a qualified scientific expert with expertise appropriate for the relevant critical area subject in accordance with WAC 365-195-905(4). A qualified professional must have obtained a B.S. or B.A. or equivalent degree in biology, engineering, environmental studies, fisheries, geomorphology, or related field, and two years of related work experience.

A.    A qualified professional for habitats or wetlands must have a degree in biology and professional experience related to the subject species.

B.    A qualified professional for a geological hazard must be a professional engineer or geologist, licensed in the state of Washington.

C.    A qualified professional for critical aquifer recharge areas means a hydrogeologist, geologist, engineer, or other scientist with experience in preparing hydrogeologic assessments.

R

“Recharge” means the process involved in the absorption and addition of water to groundwater.

“Reclaimed water” means municipal wastewater effluent that has been adequately and reliability treated so that it is suitable for beneficial use. Following treatment it is no longer considered wastewater (treatment levels and water quality requirements are given in the water reclamation and reuse standards adopted by the state Departments of Ecology and Health).

“Recreation vehicle” means a vehicle that is:

A.    Built on a single chassis;

B.    Four hundred square feet or less when measured at the largest horizontal projection;

C.    Designed to be self-propelled or permanently towable by a light duty truck; and

D.    Designed primarily not for use as a permanent dwelling but as temporary living quarters for recreational, camping, travel, or seasonal use.

“Repair or maintenance” means an activity that restores the character, scope, size, and design of a serviceable area, structure, or land use to its previously authorized and undamaged condition. Activities that change the character, size, or scope of a project beyond the original design and drain, dredge, fill, flood, or otherwise alter critical areas are not included in this definition.

“Restoration” means measures taken to restore an altered or damaged natural feature including:

A.    Active steps taken to restore damaged wetlands, streams, protected habitat, or their buffers to the functioning condition that existed prior to an unauthorized alteration; and

B.    Actions performed to reestablish structural and functional characteristics of the critical area that have been lost by alteration, past management activities, or catastrophic events.

“Rills” means steep-sided channels resulting from accelerated erosion. A rill is generally a few inches deep and not wide enough to be an obstacle to farm machinery. Rill erosion tends to occur on slopes, particularly steep slopes with poor vegetative cover.

“Riparian habitat” means areas adjacent to aquatic systems with flowing water that contain elements of both aquatic and terrestrial ecosystems that mutually influence each other. The width of these areas extends to that portion of the terrestrial landscape that directly influences the aquatic ecosystem by providing shade, fine or large woody material, nutrients, organic and inorganic debris, terrestrial insects, or habitat for riparian-associated wildlife. Widths shall be measured from the ordinary high water mark or from the top of bank if the ordinary high water mark cannot be identified. It includes the entire extent of the floodplain and the extent of vegetation adapted to wet conditions as well as adjacent upland plant communities that directly influence the stream system. Riparian habitat areas include those riparian areas severely altered or damaged due to human development activities.5

“River.” See “Watercourse.”

S

“Salmonid(s)” means a member of the fish family Salmonidae. In the vicinity of Bothell’s planning area, these include chinook, coho, chum, sockeye, and pink salmon; cutthroat, brook, brown, rainbow, steelhead and cutthroat salmon; cutthroat, brook and brown trout; and Brook and Dolly Varden char, kokanee, and whitefish.

“Scientific process” means a valid scientific process is one that produces reliable information useful in understanding the consequences of a decision. The characteristics of a valid scientific process are as follows:

A.    Peer Review. The information has been critically reviewed by other qualified scientific experts in that scientific discipline.

B.    Methods. The methods that were used are standardized in the pertinent scientific discipline or the methods have been appropriately peer-reviewed to ensure their reliability and validity.

C.    Logical Conclusions and Reasonable Inferences. The conclusions presented are based on reasonable assumptions supported by other studies and are logically and reasonably derived from the assumptions and supported by the data presented.

D.    Quantitative Analysis. The data have been analyzed using appropriate statistical or quantitative methods.

E.    Context. The assumptions, analytical techniques, data, and conclusions are appropriately framed with respect to the prevailing body of pertinent scientific knowledge.

F.    References. The assumptions, techniques, and conclusions are well referenced with citations to pertinent existing information.

“Scrub-shrub wetland” means a wetland with at least 30 percent of its surface area covered by woody vegetation less than 20 feet in height as the uppermost strata.

“Section 404 permit” means a permit issued by the U.S. Army Corps of Engineers for the placement of dredge or fill material or clearing in waters of the United States, including wetlands, in accordance with 33 USC Section 1344. Section 404 permits may also be for endangered species consultation. They require a consultation under Section 7 of the Federal Endangered Species Act.

“Seeps” means a spot where water oozes from the earth, often forming the source of a small stream.

“Seismic hazard areas” means areas that are subject to severe risk of damage as a result of earthquake-induced ground shaking, slope failure, settlement, or soil liquefaction.

“SEPA” means the Washington State Environmental Policy Act, Chapter 43.21C RCW.

“Serviceable” means presently usable.

“Shorelines” means all of the water areas of the state as defined in RCW 90.58.030, including reservoirs and their associated shorelands, together with the lands underlying them except:

A.    Shorelines of statewide significance;

B.    Shorelines on segments of streams upstream of a point where the mean annual flow is 20 cubic feet per second or less and the wetlands associated with such upstream segments; and

C.    Shorelines on lakes less than 20 acres in size and wetlands associated with such small lakes.

“Shorelines of the state” means the total of all “shorelines,” as defined in RCW 90.58.030(2)(d), and “shorelines of statewide significance” within the state, as defined in RCW 90.58.030(2)(c).

“Shorelines of statewide significance” means those areas defined in RCW 90.58.030(2)(e).

“Shorelands” or “shoreland areas” means those lands extending landward for 200 feet in all directions as measured on a horizontal plane from the ordinary high water mark; floodways and contiguous floodplain areas landward 200 feet from such floodways; and all wetlands and river deltas associated with the streams, lakes, and tidal waters which are subject to the provisions of Chapter 90.58 RCW.

“Significant portion of its range” means that portion of a species range likely to be essential to the long-term survival of the population in Washington.

“Soil survey” means the most recent soil survey for the local area or county by the National Resources Conservation Service, U.S. Department of Agriculture.

“Sole source aquifer.” See “Aquifer, sole source.”

“Special flood hazard areas” means the land in the floodplain within an area subject to a one percent or greater chance of flooding in any given year. Designations of special flood hazard areas on flood insurance map(s) always include the letters A or V.

“Special protection areas” means aquifer recharge areas defined by WAC 173-200-090 that require special consideration or increased protection because of unique characteristics, including, but not limited to:

A.    Groundwaters that support an ecological system requiring more stringent criteria than drinking water standards;

B.    Groundwater recharge areas and wellhead protection areas that are vulnerable to pollution because of hydrogeologic characteristics; and

C.    Sole source aquifer status.

“Species” means any group of animals classified as a species or subspecies as commonly accepted by the scientific community.

“Species, endangered” means any fish or wildlife species that is threatened with extinction throughout all or a significant portion of its range and is listed by the state or federal government as an endangered species.

“Species of local importance” means those species of local concern due to their population status or their sensitivity to habitat manipulation, or that are game species.

“Species, priority” means any fish or wildlife species requiring protective measures and/or management guidelines to ensure their persistence as genetically viable population levels as classified by the Washington State Department of Fish and Wildlife, including endangered, threatened, sensitive, candidate and monitor species, and those of recreational, commercial, or tribal importance.

“Species, threatened” means any fish or wildlife species that is likely to become an endangered species within the foreseeable future throughout a significant portion of its range without cooperative management or removal of threats, and is listed by the state or federal government as a threatened species.

“Stream.” See “Watercourse.”

“Sub-drainage basin” or “subbasin” means the drainage area of the highest order stream containing the subject property impact area. Stream order is the term used to define the position of a stream in the hierarchy of tributaries in the watershed. The smallest streams are the highest order (first order) tributaries. These are the upper watershed streams and have no tributaries of their own. When two first order streams meet, they form a second order stream, and when two second order streams meet they become a third order stream, and so on.

“Substantial damage” means damage of any origin sustained by a structure whereby the cost of restoring the structure to its before damaged condition would equal or exceed 50 percent of the market value of the structure before the damage occurred.

“Substantial improvement” means any repair, reconstruction or improvement of a structure, the total cost or fair market value of which exceeds 50 percent of the market value of the structure either:

A.    Before the improvement or repair is started; or

B.    If the structure has been damaged and is being restored, before the damage occurred. For the purposes of this definition “substantial improvement” is considered to occur when the first alteration of any wall, ceiling, floor or other structural part of the building commences, whether or not that alteration affects the external dimensions of the structure.

    The term does not, however, include either:

1.    Any project for improvement of a structure to comply with existing state or local health, sanitary, or safety code specifications which are solely necessary to assure safe living conditions; or

2.    Any alteration of a structure listed on the National Register of Historic Places or a State Inventory of Historic Places, or the Bothell Register of Historic Landmarks.

    The term “substantial improvement” does not mean the same as the term “substantial development” as utilized in BMC Title 13, Shoreline Management. See shorelines master program glossary.

U

“Unavoidable” means adverse impacts that remain after all appropriate and practicable avoidance and minimization have been achieved.6

V

“Vulnerability” means the combined effect of susceptibility to contamination and the presence of potential contaminants.

W

“Water-dependent” means a use or portion of a use that cannot exist in a location that is not adjacent to the water, but is dependent on the water by reason of the intrinsic nature of its operations. A use that can be carried out only on, in, or adjacent to water. Examples of water-dependent uses include: ship cargo terminal loading areas; fishing; ferry and passenger terminals; barge loading, ship building, and dry docking facilities; marinas, moorage, and boat launching facilities; aquaculture; float plane operations; surface water intake; and sanitary sewer and storm drain outfalls.

“Water resource inventory area (WRIA)” means one of 62 watersheds in the state of Washington, each composed of the drainage areas of a stream or streams, as established in Chapter 173-500 WAC as it existed on January 1, 1997.

“Water table” means that surface in an unconfined aquifer at which the pressure is atmospheric. It is defined by the levels at which water stands in wells that penetrate the aquifer just far enough to hold standing water.

“Water table aquifer.” See “Aquifer, unconfined.”

“Water typing system” means waters classified according to WAC 222-16-030, summarized as follows:

A.    “Type S water” means all waters, within their banks, inventoried as “shorelines of the state,” including periodically inundated areas of their associated wetlands.

B.    “Type F water” means segments of natural waters other than Type S waters, which are within the banks of defined channels and periodically inundated areas of their associated wetlands, or within lakes, ponds, or impoundments having a surface area of 0.5 acre or greater at seasonal low water and which in any case contain fish habitat.

C.    “Type Np water” means all segments of natural waters within the banks of defined channels that are perennial non-fish habitat streams. Perennial streams are flowing waters that do not go dry any time of a year of normal rainfall and include the intermittent dry portions of the perennial channel below the uppermost point of perennial flow.

D.    “Type Ns water” means all segments of natural waters within the banks of the defined channels that are not Type S, F, or Np waters. These are seasonal, non-fish habitat streams in which surface flow is not present for at least some portion of a year of normal rainfall and are not located downstream from any stream reach that is a Type Np water.

“Watercourse” means any portion of a channel, bed, bank, or bottom waterward of the ordinary high water line of waters of the state including areas in which fish may spawn, reside, or through which they may pass, and tributary waters with defined beds or banks, which influence the quality of fish habitat downstream. This definition includes watercourses that flow on an intermittent basis or which fluctuate in level during the year and applies to the entire bed of such watercourse whether or not the water is at peak level. This definition does not include irrigation ditches, canals, storm water run-off devices, or other entirely artificial watercourses, except where they exist in a natural watercourse that has been altered by humans.

“Well” means a bored, drilled, or driven shaft, or a dug hole whose depth is greater that the largest surface dimension for the purpose of withdrawing or injecting water or other liquids.

“Wellhead protection area (WHPA)” means the portion of a zone of contribution for a well, well field, or spring, as defined using criteria established by the Washington State Department of Ecology.

“Wetland classes,” “classes of wetlands,” or “wetland types” means the descriptive classes of the wetlands taxonomic classification system of the Washington State Wetland Rating System for Western Washington (revised), Department of Ecology publication #04-06-025.

“Wetland edge” means the boundary of a wetland as delineated based on the definitions contained in this chapter.

“Wetlands” means those areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas. Wetlands do not include those artificial wetlands intentionally created from nonwetland sites, including, but not limited to, irrigation and drainage ditches, grass-lined swales, canals, detention facilities, wastewater treatment facilities, farm ponds, and landscape amenities, or those wetlands created after July 1, 1990, that were unintentionally created as a result of the construction of a road, street, or highway. Wetlands may include those artificial wetlands intentionally created from non-wetland areas to mitigate the conversion of wetlands. For identifying and delineating a wetland, local government shall use the Washington State Wetland Identification and Delineation Manual.

Z

“Zone of contribution” means the area surrounding a well or spring that encompasses all areas or features that supply groundwater recharge to the well or spring. (Ord. 2085 § 2 (Exh. B), 2012; Ord. 2010 § 1 (Exh. B), 2009; Ord. 1957 § 1 (Exh. B), 2006; Ord. 1946 § 3, 2005).

14.04.010 Purpose and goals.

A.    The purpose of this chapter is to designate and classify ecologically sensitive and hazardous areas and to protect these areas and their functions and values, while also allowing for reasonable use of private property.

B.    This chapter is to implement the goals, policies, guidelines, and requirements of the city comprehensive plan and the Growth Management Act.

C.    The city finds that critical areas provide a variety of valuable and beneficial biological and physical functions that benefit the city and its residents, and/or may pose a threat to human safety or to public and private property. The beneficial functions and values provided by critical areas include, but are not limited to, water quality protection and enhancement, fish and wildlife habitat, food chain support, flood storage, conveyance and attenuation of flood waters, groundwater recharge and discharge, erosion control, wave attenuation, protection from hazards, historical, archaeological, and aesthetic value protection, and recreation. These beneficial functions are not listed in order of priority.

D.    Goals. By limiting development and alteration of critical areas, this chapter seeks to:

1.    Protect members of the public and public resources and facilities from injury, loss of life, or property damage due to landslides and steep slope failures, erosion, seismic events, volcanic eruptions, or flooding;

2.    Maintain healthy, functioning ecosystems through the protection of unique, fragile, and valuable elements of the environment, including ground and surface waters, wetlands, and fish and wildlife and their habitats, and to conserve the biodiversity of plant and animal species;

3.    Direct activities not dependent on critical areas resources to less ecologically sensitive sites and mitigate unavoidable impacts to critical areas by regulating alterations in and adjacent to critical areas; and

4.    Prevent cumulative adverse environmental impacts to water quality, wetlands, and fish and wildlife habitat, and the overall net loss of wetlands, frequently flooded areas, and habitat conservation areas.

E.    The regulations of this chapter are intended to protect critical areas in accordance with the Growth Management Act and through the application of the best available science, as determined according to WAC 365-195-900 through 365-195-925, and in consultation with state and federal agencies and other qualified professionals.

F.    This chapter is to be administered with flexibility and attention to site-specific characteristics. It is not the intent of this chapter to make a parcel of property unusable by denying its owner reasonable economic use of the property or to prevent the provision of public facilities and services necessary to support existing development and planned for by the community without decreasing current service levels below minimum standards.7

G.    The city’s enactment or enforcement of this chapter shall not be construed for the benefit of any individual person or group of persons other than the general public. (Ord. 1946 § 3, 2005).

14.04.020 Authority.

A.    As provided herein, the director is given the authority and responsibility to interpret and apply, and the responsibility to enforce, this chapter to accomplish the stated purpose.

B.    The city may withhold, condition, or deny development permits or activity approvals to ensure that the proposed action is consistent with this chapter. (Ord. 1946 § 3, 2005).

14.04.030 Relationship to other regulations.

A.    These critical areas regulations shall apply as an overlay and in addition to zoning and other regulations adopted by the city.

B.    Any individual critical area adjoined by another type of critical area shall have the buffer and meet the requirements that provide the most protection to the critical areas involved. When any provision of this chapter or any existing regulation, easement, covenant, or deed restriction conflicts with this chapter, that which provides more protection to the critical areas shall apply.

C.    These critical areas regulations shall apply concurrently with review conducted under the State Environmental Policy Act (SEPA), as locally adopted. Any conditions required pursuant to this chapter shall be included in the SEPA review and threshold determination.

D.    Compliance with the provisions of this chapter does not constitute compliance with other federal, state, and local regulations and permit requirements that may be required (for example, Shoreline Substantial Development Permits, Hydraulic Permit Act (HPA) permits, Section 106 of the National Historic Preservation Act, U.S. Army Corps of Engineers Section 404 permits, National Pollution Discharge Elimination System permits). The applicant is responsible for complying with these requirements, apart from the process established in this chapter.

E.    It is not intended that this chapter repeal, abrogate, or impair any existing regulations, easements, covenants, or deed restrictions. Neither the shoreline master program nor SEPA regulations and procedures is to be considered replaced or rescinded by this chapter. Where critical areas are present within the jurisdiction of the shoreline master program, the regulations contained within this chapter shall prevail, until such time that the shoreline master program is amended to be consistent with this chapter. Where this chapter creates greater protection for critical areas over other regulations of the city, outside of the jurisdiction of the shoreline master program, the provisions of this chapter shall prevail. It is understood that the provisions of this chapter may not allow development to occur at what otherwise might be the property’s full zoning potential. (Ord. 1946 § 3, 2005).

14.04.040 Administrative procedures.

The administrative procedures followed during the critical area review process shall conform to the standards and requirements of the city. This shall include, but not be limited to, timing, appeals, and fees associated with applications covered by this chapter and with BMC Title 11. (Ord. 1946 § 3, 2005).

14.04.050 Fees.

A.    The city by resolution shall establish fees for filing of a critical area identification form, critical area review processing, and other services provided by the city as required by this chapter. These fees shall be based on the anticipated sum of direct costs incurred by the city for any individual development or action and may be established as a sliding scale that will recover all of the city costs including the enforcement of these code provisions. Basis for these fees shall include, but not be limited to, the cost of engineering and planning review time, cost of inspection time, costs for administration, and any other special costs attributable to the critical area review process.

B.    Unless otherwise indicated in this chapter, the applicant shall be responsible for the initiation, preparation, submission, and expense of all required reports, assessment(s), studies, plans, reconnaissance(s), peer review(s) by qualified consultants, and other work prepared in support of or necessary to review the application. (Ord. 1946 § 3, 2005).

14.04.060 Administrative rules.

Applicable departments within the city are authorized to adopt such administrative rules and regulations as necessary and appropriate to implement this chapter and to prepare and require the use of such forms as necessary for its administration. (Ord. 1946 § 3, 2005).

14.04.070 Interpretation.

In the interpretation and application of this chapter, the provisions of this chapter shall be considered to be the minimum requirements necessary, shall be liberally construed to serve the purpose of this chapter, and shall be deemed to neither limit nor repeal any other provisions under state statute. (Ord. 1946 § 3, 2005).

14.04.080 Jurisdiction – Critical areas.

A.    The city shall regulate all uses, activities, and developments within, adjacent to, or likely to affect, one or more critical areas, consistent with the best available science and the provisions herein.

B.    Critical areas regulated by this chapter include:

1.    Wetlands as designated in Article XI, Wetlands;

2.    Critical aquifer recharge areas as designated in Article XII, Critical Aquifer Recharge Areas;

3.    Frequently flooded areas as designated in Article XIII, Frequently Flooded Areas;

4.    Geologically hazardous areas as designated in Article XIV, Geologically Hazardous Areas; and

5.    Fish and wildlife habitat conservation areas as designated in Article XV, Fish and Wildlife Habitat Conservation Areas.

C.    All areas within the city meeting the definition of one or more critical areas, regardless of any formal identification, are hereby designated critical areas and are subject to the provisions of this chapter.

D.    Areas Adjacent to Critical Areas Subject to Regulation. Areas adjacent to critical areas shall be considered to be within the jurisdiction of these requirements and regulations to support the intent of this chapter and ensure protection of the functions and values of critical areas. “Adjacent” shall mean any activity located:

1.    On a site immediately adjoining a critical area;

2.    A distance equal to or less than the required critical area buffer width and building setback;

3.    A distance equal to or less than one-half mile (2,640 feet) from a bald eagle nest;8

4.    A distance equal to or less than 300 feet upland from a stream, wetland, or water body;9

5.    Within the floodway, floodplain, or channel migration zone; or

6.    A distance equal to or less than 200 feet from a critical aquifer recharge area.10 (Ord. 1946 § 3, 2005).

14.04.090 Protection of critical areas.

Any action taken pursuant to this chapter shall result in equivalent or greater functions and values of the critical areas associated with the proposed action, as determined by the best available science. All actions and developments shall be designed and constructed in accordance with mitigation sequencing [BMC 14.04.210] to avoid, minimize, and restore all adverse impacts. Applicants must first demonstrate an inability to avoid or reduce impacts, before restoration and compensation of impacts will be allowed. No activity or use shall be allowed that results in a net loss of the functions or values of critical areas. (Ord. 1946 § 3, 2005).

Article II. Best Available Science

14.04.100 Best available science.

A.    Protect Functions and Values of Critical Areas with Special Consideration to Anadromous Fish. Critical areas reports and decisions to alter critical areas shall rely on the best available science to protect the functions and values of critical areas and must give special consideration to conservation or protection measures necessary to preserve or enhance anadromous fish, such as salmon and bull trout, and their habitat.11

B.    Best Available Science to Be Consistent with Criteria. The best available science is that scientific information applicable to the critical area prepared by local, state, or federal natural resource agencies, a qualified scientific professional, or team of qualified scientific professionals that is consistent with criteria established in WAC 365-195-900 through 365-195-925.

C.    Characteristics of a Valid Scientific Process. In the context of critical areas protection, a valid scientific process is one that produces reliable information useful in understanding the consequences of a local government’s regulatory decisions, and in developing critical areas policies and development regulations that will be effective in protecting the functions and values of critical areas. To determine whether information received during the permit review process is reliable scientific information, the director shall determine whether the source of the information displays the characteristics of a valid scientific process. Such characteristics are as follows:

1.    Peer Review. The information has been critically reviewed by other persons who are qualified scientific experts in that scientific discipline. The proponents of the information have addressed the criticism of the peer reviewers. Publication in a refereed scientific journal usually indicates that the information has been appropriately peer-reviewed;

2.    Methods. The methods used to obtain the information are clearly stated and reproducible. The methods are standardized in the pertinent scientific discipline or, if not, the methods have been appropriately peer-reviewed to ensure their reliability and validity;

3.    Logical Conclusions and Reasonable Inferences. The conclusions presented are based on reasonable assumptions supported by other studies and consistent with the general theory underlying the assumptions. The conclusions are logically and reasonably derived from the assumptions and supported by the data presented. Any gaps in information and inconsistencies with other pertinent scientific information are adequately explained;

4.    Quantitative Analysis. The data have been analyzed using appropriate statistical or quantitative methods;

5.    Context. The information is placed in proper context. The assumptions, analytical techniques, data, and conclusions are appropriately framed with respect to the prevailing body of pertinent scientific knowledge; and

6.    References. The assumptions, analytical techniques, and conclusions are well referenced with citations to relevant, credible literature and other pertinent existing information.

D.    Nonscientific Information. Nonscientific information may supplement scientific information, but it is not an adequate substitute for valid and available scientific information. Common sources of nonscientific information include the following:

1.    Anecdotal Information. One or more observations that are not part of an organized scientific effort (for example, “I saw a grizzly bear in that area while I was hiking”);

2.    Non-Expert Opinion. Opinion of a person who is not a qualified scientific expert in a pertinent scientific discipline (for example, “I do not believe there are grizzly bears in that area”); and

3.    Hearsay. Information repeated from communication with others (for example, “At a lecture last week, Dr. Smith said there were no grizzly bears in that area”).

E.    Absence of Valid Scientific Information. Where there is an absence of valid scientific information or incomplete scientific information relating to a critical area leading to uncertainty about the risk to critical area function of permitting an alteration of or impact to the critical area, the director shall:

1.    Take a “precautionary or a no-risk approach” that strictly limits development and land use activities until the uncertainty is sufficiently resolved; and

2.    Require application of an effective adaptive management program that relies on scientific methods to evaluate how well regulatory and nonregulatory actions protect the critical area. An adaptive management program is a formal and deliberate scientific approach to taking action and obtaining information in the face of uncertainty. An adaptive management program shall:

a.    Address funding for the research component of the adaptive management program;

b.    Change course based on the results and interpretation of new information that resolves uncertainties; and

c.    Commit to the appropriate timeframe and scale necessary to reliably evaluate regulatory and nonregulatory actions affecting protection of critical areas and anadromous fisheries. (Ord. 1946 § 3, 2005).

Article III. Applicability, Exemptions, and Exceptions

14.04.110 Applicability.

A.    The provisions of this chapter shall apply to all lands, all land uses and development activity, and all structures and facilities in the city, whether or not a permit or authorization is required, and shall apply to every person, firm, partnership, corporation, group, governmental agency, or other entity that owns, leases, or administers land within the city. No person, company, agency, or applicant shall alter a critical area or buffer except as consistent with the purposes and requirements of this chapter.

B.    The city shall not approve any permit or otherwise issue any authorization to alter the condition of any land, water, or vegetation, or to construct or alter any structure or improvement in, over, or on a critical area or associated buffer, without first ensuring compliance with the requirements of this chapter, including, but not limited to, the following:

1.    Building permit;

2.    Clearing and grading permit;

3.    Forest practices permit;

4.    Conditional use permit;

5.    Shoreline conditional use permit;

6.    Shoreline substantial development permit;

7.    Shoreline exemption;

8.    Shoreline variance;

9.    Short subdivision;

10.    Subdivision;

11.    Planned unit development;

12.    Binding site plan;

13.    Zoning variance;

14.    Zoning code amendment; or

15.    Any other adopted permit or required approval not expressly exempted by this chapter.

C.    Approval of a permit or development proposal pursuant to the provisions of this chapter does not discharge the obligation of the applicant to comply with the provisions of this chapter. (Ord. 2010 § 1 (Exh. B), 2009; Ord. 1946 § 3, 2005).

14.04.120 Exemptions.

A.    Exemption Request and Review Process. The proponent of the activity may submit a written request for exemption to the director that describes the activity and states the exemption listed in this section that applies.

    The director shall review the exemption request to verify that it complies with this chapter and approve, approve with conditions, or deny the exemption. If the exemption is approved, it shall be placed on file with the department. If the exemption is denied, the proponent may continue in the review process and shall be subject to the requirements of this chapter.

B.    Exempt Activities and Impacts to Critical Areas. All exempted activities shall use reasonable methods to avoid potential adverse impacts to critical areas. Exemption from this chapter does not give permission to degrade a critical area or ignore risk from natural hazards. Any incidental damage to, or alteration of, a critical area that is not a necessary outcome of the exempted activity shall be restored, rehabilitated, or replaced at the responsible party’s expense.

C.    Exempt Activities. The following developments, activities, and associated uses shall be exempt from the provisions of this chapter; provided, that they are otherwise consistent with the provisions of other local, state, and federal laws and requirements:

1.    Emergencies. Those activities necessary to prevent an immediate threat to public health, safety, or welfare, or that pose an immediate risk of damage to private property and that require remedial or preventative action in a timeframe too short to allow for compliance with the requirements of this chapter.

    Emergency actions that create an adverse impact to a critical area or its buffer shall use reasonable methods to address the emergency; in addition, they must have the least possible impact to the critical area or its buffer. The person or agency undertaking such action shall notify the city within one working day following commencement of the emergency activity. Within 30 days, the director shall determine if the action taken was within the scope of the emergency actions allowed in this subsection. If the director determines that the action taken, or any part of the action taken, was beyond the scope of an allowed emergency action, then enforcement provisions of BMC 14.04.260, Unauthorized critical area alterations and enforcement, shall apply.

    After the emergency, the person or agency undertaking the action shall fully fund and conduct necessary restoration and/or mitigation for any adverse impacts to the critical area and buffers resulting from the emergency action in accordance with an approved critical areas report and mitigation plan. The person or agency undertaking the action shall apply for review, and the alteration, critical areas report, and mitigation plan shall be reviewed by the city in accordance with the review procedures contained herein. Restoration and/or mitigation activities must be initiated within one year of the date of the emergency, and completed in a timely manner;

2.    Operation, Maintenance, or Repair. Operation, maintenance, or repair of existing structures, infrastructure improvements, utilities, public or private roads, dikes, levees, or drainage systems, that do not require construction permits, if the activity does not further alter or increase the impact to, or encroach further within, the critical area or buffer and there is no increased risk to life or property as a result of the proposed operation, maintenance, or repair. Operation and maintenance includes vegetation management performed in accordance with best management practices that is part of ongoing maintenance of structures, infrastructure, or utilities; provided, that such management actions are part of regular and ongoing maintenance, do not expand further into the critical area, are not the result of an expansion of the structure or utility, and do not directly impact an endangered or threatened species;

3.    Passive Outdoor Activities. Recreation, education, and scientific research activities that do not degrade the critical area, including fishing, hiking, and bird watching. Public and private pedestrian trails are not exempt activities and are regulated according to BMC 14.04.150(C)(5);

4.    Forest Practices. Forest practices regulated and conducted in accordance with the provisions of Chapter 76.09 RCW and forest practices regulations, WAC Title 222, and those that are exempt from city jurisdiction; provided, that forest practice conversions are not exempt;

5.    Agricultural Activities. The following agricultural activities in existence and ongoing on the date this chapter becomes effective:

a.    Livestock grazing; provided, that water quality associated with any critical area is not degraded beyond its existing status on the date the ordinance codified in this chapter becomes effective. Administrative rules shall address access to streams for watering purposes, stream crossing requirements and use of natural barriers and vegetative buffering in lieu of fencing. In no case, however, shall any kind of fencing or natural materials be located closer to a critical area than its buffer edge;

b.    Mowing of hay, grass or grain crops;

c.    Tilling, discing, planting, seeding, harvesting and related activities for pasture, food crops, grass seed or sod; provided, that such activities shall not involve the conversion of any critical area not currently under agricultural use;

d.    Normal and routine maintenance of existing agricultural irrigation and drainage ditches; provided, however, that this exception shall not apply to any ditches used by salmonids. The expansion of an existing drainage or irrigation system or the installation of a new drainage or irrigation system shall not be deemed “normal and routine maintenance” as referred to in this section;

e.    Normal and routine maintenance of farm ponds and fish ponds; provided, that such activities shall not involve conversion of any critical area not currently being used for such activity.

    Activities on areas lying fallow as part of a conventional rotational cycle are part of an ongoing operation. Activities which bring an area into new agricultural use are not part of an ongoing operation. An operation ceases to be ongoing when the area on which it was conducted has been converted to another use or has lain idle so long that modifications to the hydrological regime are necessary to resume operations. (Ord. 2010 § 1 (Exh. B), 2009; Ord. 1946 § 3, 2005).

14.04.130 Exception – Public agency and utility.

A.    If the application of this chapter would prohibit a development proposal by a public agency or public utility, the agency or utility may apply for an exception pursuant to this section.

B.    Exception Request and Review Process. An application for a public agency and utility exception shall be made to the city and shall include a critical area identification form; critical areas report, including mitigation plan, if necessary; and any other related project documents, such as permit applications to other agencies, special studies, and environmental documents prepared pursuant to the State Environmental Policy Act (Chapter 43.21C RCW). The director shall prepare a recommendation to the hearing body based on review of the submitted information, a site inspection, and the proposal’s ability to comply with public agency and utility exception review criteria in subsection D of this section.

C.    Hearing Body Review. The hearing body shall review the application and director’s recommendation, and conduct a public hearing pursuant to the provisions of BMC Title 11. The hearing body shall approve, approve with conditions, or deny the request based on the proposal’s ability to comply with all of the public agency and utility exception criteria in subsection D of this section.

D.    Public Agency and Utility Review Criteria. The criteria for review and approval of public agency and utility exceptions follow:

1.    There is no other practical alternative to the proposed development with less impact on the critical areas;

2.    The application of this chapter would unreasonably restrict the ability to provide utility services to the public;

3.    The proposal does not pose an unreasonable threat to the public health, safety, or welfare on or off the development proposal site;

4.    The proposal attempts to protect and mitigate impacts to the critical area functions and values consistent with the best available science; and

5.    The proposal is consistent with other applicable regulations and standards.

E.    Burden of Proof. The burden of proof shall be on the applicant to bring forth evidence in support of the application and to provide sufficient information on which any decision has to be made on the application. (Ord. 2010 § 1 (Exh. B), 2009; Ord. 1946 § 3, 2005).

14.04.140 Exception – Reasonable use.

A.    If the application of this chapter would deny all reasonable economic use of the subject property, the city shall determine if compensation is an appropriate action, or the property owner may apply for an exception pursuant to this section. A reasonable use exception is a measure of last resort for use only in those situations where all economic use of a property would be denied by the critical areas regulations. A reasonable use request is a Type II action and shall be considered in accordance with the procedures for such actions as set forth in BMC Title 11, Administration of Development Regulations.

B.    Exception Request and Review Process. An application for a reasonable use exception shall be made to the city and shall include:

1.    Contents of Complete Application. An application for a reasonable use request shall include the following information in addition to that required in BMC Title 11:

a.    A description of the proposed development site, including the entire critical area and the setbacks or buffers as required under this title, whether the critical area is wholly contained on the development site or not;

b.    An analysis of the impact that the amount of development proposed, in accordance with all applicable development regulations, would have on the critical area;

c.    An analysis of whether any other reasonable use with less adverse impact on the critical area and buffer area, as required, is possible;

d.    A design of the project as proposed as a reasonable use so that the development will have the least practicable adverse impact on the critical area;

e.    A description and analysis of the modification requested of the minimum requirements of this chapter to accommodate the proposed development;

f.    Such other information as may be required by the community development director as reasonable and necessary to evaluate the reasonable use respective to the proposed development.

2.    The director shall prepare a recommendation to the hearing body based on review of the submitted information, a site inspection, and the proposal’s ability to comply with reasonable use exception criteria in subsection D of this section.

C.    Director’s Review. The director shall review the application and shall approve, approve with conditions, or deny the request based on the proposal’s ability to comply with all of the reasonable use exception review criteria in subsection D of this section.

D.    Reasonable Use Review Criteria. Criteria for review and approval of reasonable use exceptions follow; one or more may apply:

1.    The application of this chapter would deny all reasonable economic use of the property;

2.    No other reasonable economic use of the property has less adverse impact on the critical area;

3.    The proposed impact to the critical area is the minimum necessary to allow for reasonable economic use of the property;

4.    The inability of the applicant to derive reasonable economic use of the property is not the result of actions by the applicant after the effective date of this chapter, or its predecessor;

5.    The proposal does not pose an unreasonable threat to the public health, safety, or welfare on or off the development proposal site;

6.    The proposal will result in no net loss of critical area functions and values consistent with the best available science; or

7.    The proposal is consistent with other applicable regulations and standards.

E.    Burden of Proof. The burden of proof shall be on the applicant to bring forth evidence in support of the application and to provide sufficient information on which any decision has to be made on the application.

F.    Time Frame for Submission of Construction Level Permits. Permit applications for any construction level permits associated with an approved reasonable use request shall be submitted to the city for approval within five years of the date of the reasonable use request approval; except that for reasonable use requests approved through December 31, 2011, permit applications for any construction level permits shall be submitted to the city for approval within seven years of the date of the reasonable use request approval. (Ord. 2043 § 2 (Exh. B), 2010; Ord. 2010 § 1 (Exh. B), 2009; Ord. 1946 § 3, 2005).

Article IV. Allowed Activities

14.04.150 Allowed activities.

A.    Critical Areas Report. Activities allowed under this chapter shall have been reviewed and permitted or approved by the city or other agency with jurisdiction, but do not require submittal of a separate critical areas identification form or critical areas report, unless such submittal was required previously for the underlying permit. The director may apply conditions to the underlying permit or approval to ensure that the allowed activity is consistent with the provisions of this chapter to protect critical areas.

B.    Required Use of Best Management Practices. All allowed activities shall be conducted using the best management practices, adopted pursuant to the City of Bothell Design and Construction Standards and Specifications, and any other adopted plans and regulations, that result in the least amount of impact to the critical areas. Best management practices shall be used for tree and vegetation protection, construction management, erosion and sedimentation control, water quality protection, and regulation of chemical applications. The city shall observe the use of best management practices to ensure that the activity does not result in degradation to the critical area. Any incidental damage to, or alteration of, a critical area shall be restored, rehabilitated, or replaced at the responsible party’s expense within a timeframe approved by the director, and in any case work shall begin within no later than six months of the date of the incident.

C.    Allowed Activities. The following activities are allowed:

1.    Permit Requests Subsequent to Previous Critical Area Review. Development permits and approvals that involve both discretionary land use approvals (such as subdivisions, rezones, or conditional use permits), and construction approvals (such as building permits) if all of the following conditions have been met:

a.    The provisions of this chapter have been previously addressed as part of another approval;

b.    There have been no material changes in the potential impact to the critical area or buffer since the prior review;

c.    There is no new information available that is applicable to any critical area review of the site or particular critical area;

d.    The permit or approval has not expired or, if no expiration date, no more than five years has elapsed since the issuance of that permit or approval; and

e.    Compliance with any standards or conditions placed upon the prior permit or approval has been achieved or secured;

2.    Modification to Existing Structures. Structural modification of, addition to, or replacement of an existing legally constructed structure that does not further alter or increase the adverse impact to the critical area or buffer and there is no increased risk to life or property as a result of the proposed modification or replacement; provided, that restoration of structures substantially damaged by fire, flood, or act of nature must be initiated within one year of the date of such damage, as evidenced by the submittal of a valid building permit, and diligently pursued to completion;

3.    Activities within the Improved Right-of-Way. Replacement, modification, installation, or construction of utility facilities, lines, pipes, mains, equipment, or appurtenances, not including substations, when such facilities are located within the improved portion of the public right-of-way or a city authorized private roadway except those activities that alter a wetland or watercourse, such as culverts or bridges, or result in the transport of sediment or increased storm water; subject to the following:

a.    Critical area and/or buffer widths shall be increased, where possible, equal to the width of the right-of-way improvement, including disturbed areas; and

b.    Retention and replanting of native vegetation shall occur wherever possible along the right-of-way improvement and resulting disturbance;

4.    Minor Utility Projects. Utility projects which have minor or short-duration impacts to critical areas, as determined by the director in accordance with the criteria below, and which do not significantly impact the function or values of a critical area(s); provided, that such projects are constructed with best management practices and additional restoration measures are provided. Minor activities shall not result in the transport of sediment or increased storm water. Such allowed minor utility projects shall meet the following criteria:

a.    There is no practical alternative to the proposed activity with less adverse impact on critical areas;

b.    The activity involves the placement of a utility pole, street signs, anchor, or vault or other small component of a utility facility; and

c.    The activity involves disturbance of an area less than 75 square feet;

5.    Public and Private Nonmotorized Trails. Public and private nonmotorized trails, except when such trails are located within wetlands, or fish and wildlife habitat conservation areas, or their buffers. Nonmotorized trails shall be subject to the following:

a.    The trail surface shall meet all other requirements including water quality standards set forth in the City of Bothell Design and Construction Standards and Specifications, and any other adopted plans and regulations;

b.    Critical area buffer widths shall be increased, where possible, when nonmotorized trails are located within buffers to an amount equal to the width of the trail corridor, including disturbed areas;

c.    Nonmotorized trails proposed to be located in landslide or erosion hazard areas shall be constructed in a manner that does not increase the risk of landslide or erosion and in accordance with an approved geotechnical report; and

d.    Nonmotorized trails proposed to be located in wetland buffers shall follow the requirements of BMC 14.04.530(F);

6.    Select Vegetation Removal Activities. The following vegetation removal activities; provided, that no vegetation shall be removed from a critical area or its buffer without approval from the director:

a.    The removal of the following vegetation with hand labor and light equipment only:

i.    Invasive and noxious weeds;12

ii.    English ivy (Hedera helix);

iii.    Himalayan blackberry (Rubus discolor, R. procerus); and

iv.    Evergreen blackberry (Rubus laciniatus);

Removed vegetation shall be replaced with native species as approved by the director.

b.    The removal of trees from critical areas and buffers that are hazardous, posing a threat to public safety, or posing an imminent risk of damage to private property; provided, that:

i.    The applicant submits a report from a certified arborist, registered landscape architect, or professional forester that documents the hazard and provides a replanting schedule for the replacement trees;

ii.    Tree cutting shall be limited to pruning and crown thinning, unless otherwise justified by a qualified professional. Where pruning or crown thinning is not sufficient to address the hazard, trees should be removed or converted to wildlife snags;

iii.    All vegetation cut (tree stems, branches, etc.) shall be left within the critical area or buffer unless removal is warranted due to the potential for disease, re-vegetation by invasive species, or pest transmittal to other healthy vegetation;

iv.    The landowner shall replace any trees that are removed with new trees at a ratio of two replacement trees for each tree removed (2:1) within one year in accordance with an approved restoration plan. Replacement trees may be planted at a different, nearby location if it can be determined that planting in the same location would create a new hazard or potentially damage the critical area. Replacement trees shall be species that are native and indigenous to the site and a minimum of one inch in diameter-at-breast height (dbh) for deciduous trees and a minimum of six feet in height for evergreen trees as measured from the top of the root ball;

v.    If a tree to be removed provides critical habitat, such as an eagle perch, a qualified wildlife biologist shall be consulted to determine timing and methods or removal that will minimize impacts; and

vi.    Hazard trees determined to pose an imminent threat or danger to public health or safety, to public or private property, or of serious environmental degradation may be removed or pruned by the landowner prior to receiving written approval from the city; provided, that within 14 days following such action, the landowner shall submit a restoration plan that demonstrates compliance with the provisions of this chapter;

c.    Measures to control a fire or halt the spread of disease or damaging insects consistent with the state Forest Practices Act, Chapter 76.09 RCW, and local forest practices; provided, that the removed vegetation shall be replaced in-kind or with similar native species within one year in accordance with an approved restoration plan; and

d.    Unless otherwise provided, or as a necessary part of an approved alteration, removal of any vegetation or woody debris from a habitat conservation area or wetland shall be prohibited;

7.    Chemical Applications. The application of herbicides, pesticides, organic or mineral-derived fertilizers, or other hazardous substances, if necessary, as approved by the city; provided, that their use shall be restricted in accordance with state Department of Fish and Wildlife Management recommendations and the regulations of the state Department of Agriculture and the U.S. Environmental Protection Agency;13

8.    Minor Site Investigative Work. Work necessary for land use submittals, such as surveys, soil logs, percolation tests, and other related activities, where such activities do not require construction of new roads or significant amounts of excavation. In every case, impacts to the critical area shall be the minimum necessary and disturbed areas shall be immediately restored; and

9.    Navigational Aids and Boundary Markers. Construction or modification of navigational aids and boundary markers. (Ord. 2010 § 1 (Exh. B), 2009; Ord. 1946 § 3, 2005).

Article V. Critical Area Project Review Process

14.04.160 General requirements.

A.    As part of this review, the city shall:

1.    Verify the information submitted by the applicant;

2.    Evaluate the project area and vicinity for critical areas;

3.    Determine whether the proposed project is likely to impact the functions or values of critical areas; and

4.    Determine if the proposed project adequately addresses the impacts and avoids impacts to the critical area associated with the project.

B.    If the proposed project is within, adjacent to, or is likely to impact a critical area, the city shall:

1.    Require a critical areas report from the applicant that has been prepared by a qualified professional;

2.    Review and evaluate the critical areas report. The city shall utilize third party review whenever it is deemed necessary by the director;

3.    Determine whether the development proposal conforms to the purposes and performance standards of this chapter;

4.    Assess the potential adverse impacts to the critical area and determine if they can be avoided or minimized; and

5.    Determine if any mitigation proposed by the applicant is sufficient to protect the functions and values of the critical area and public health, safety, and welfare concerns consistent with the goals, purposes, objectives, and requirements of this chapter. (Ord. 2010 § 1 (Exh. B), 2009; Ord. 1946 § 3, 2005).

14.04.170 Critical area identification form.

A.    Submittal. Prior to the city’s consideration of any proposed activity not found to be exempt under BMC 14.04.120, Exemptions, or allowed pursuant to BMC 14.04.150, Allowed activities, the applicant shall submit to the department a complete critical area identification form on forms provided by the city.

B.    Site Inspection. Upon receipt of a project application and a critical area identification form, the director shall conduct a site inspection to review critical area conditions on site if deemed warranted. The director shall notify the property owner of the inspection prior to the site visit. Reasonable access to the site shall be provided by the property owner for the purpose of inspections during any proposal review, restoration, emergency action, or monitoring period.

C.    Critical Area Identification Form Review Process. The director shall review the critical area identification form, conduct a site inspection, and review other information available pertaining to the site and the proposal and make a determination as to whether any critical areas may be affected by the proposal and if a more detailed critical areas report shall be submitted.

1.    Decision Indicators. The director may use the following indicators to assist in determining the need for a critical areas report:

a.    Indication of a critical area on the city critical areas maps that may be impacted by the proposed activity;

b.    Information and scientific opinions from appropriate agencies, including but not limited to the Departments of Fish and Wildlife, Natural Resources, and Ecology;

c.    Documentation, from a scientific or other reasonable source, of the possible presence of a critical area; or

d.    A finding by a qualified professional or a reasonable belief by the director that a critical area may exist on or adjacent to the site of the proposed activity.

D.    Decision on Identification Form.

1.    No Critical Areas Present. If after a site visit the director’s analysis indicates that the project area is not within or adjacent to a critical area or buffer and that the proposed activity is unlikely to degrade the functions or values of a critical area, then the director shall rule that the critical area review is complete and note on the identification form the reasons that no further review is required. A summary of this information shall be included in any staff report or decision on the underlying permit.

2.    Critical Areas Present, But No Impact – Waiver. If the director determines that there are critical areas within or adjacent to the project area, but that the best available science shows that the proposed activity is unlikely to degrade the functions or values of the critical area, the director may waive the requirement for a critical areas report. A waiver may be granted if there is substantial evidence that all of the following requirements will be met:

a.    There will be no alteration of the critical area or buffer;

b.    The development proposal will not impact the critical area in a manner contrary to the purpose, intent, and requirements of this chapter; and

c.    The proposal is consistent with other applicable regulations and standards.

    A summary of this analysis and the findings shall be included in any staff report or decision on the underlying permit.

3.    Critical Areas May Be Affected by Proposal. If the director determines that a critical area or areas may be affected by the proposal, then the director shall notify the applicant that a critical areas report must be submitted prior to further review of the project, and indicate each of the critical area types that should be addressed in the report.

E.    Director’s Determination Subject to Reconsideration. A determination regarding the apparent absence of one or more critical areas by the director is not an expert certification regarding the presence of critical areas and the determination is subject to possible reconsideration and reopening if new information is received.

    If the applicant wants greater assurance of the accuracy of the critical area review determination, the applicant may choose to hire a qualified professional to provide such assurances. (Ord. 2010 § 1 (Exh. B), 2009; Ord. 1946 § 3, 2005).

14.04.180 Public notice of initial determination.

The city shall notify the public of proposals in accordance with BMC Title 11 and the following:

A.    If the director determines that no critical areas report is necessary, the city shall state the reasons for this determination in the notice of application issued by the city for the proposal.

B.    If the director determines that there are critical areas on the site that the proposed project is unlikely to impact and the project meets the requirements for and has been granted a waiver from the requirement to complete a critical areas report, a summary of the analysis and findings for this decision shall be stated in the notice of application for the proposal.

C.    If the director determines that critical areas may be affected by the proposal and a critical areas report is required, public notice of the application shall include a description of the critical area that might be affected and state that a critical areas report(s) is required. (Ord. 2010 § 1 (Exh. B), 2009; Ord. 1946 § 3, 2005).

Article VI. Critical Areas Report

14.04.190 Critical areas report – Requirements.

A.    Preparation by Qualified Professional. If required by the director in accordance with BMC 14.04.170(D)(3), the applicant shall submit a critical areas report prepared by a qualified professional as defined herein.

B.    Incorporating of Best Available Science. The critical areas report shall use scientifically valid methods and studies in the analysis of critical areas data and field reconnaissance and reference the source of science used. The critical areas report shall evaluate the proposal and all probable impacts to critical areas in accordance with the provisions of this chapter.

C.    Minimum Report Contents. At a minimum, the report shall contain the following:

1.    The name and contact information of the applicant, a description of the proposal, and identification of the permit requested;

2.    A copy of the site plan for the development proposal including:

a.    A map to scale depicting critical areas, buffers, the development proposal, and any areas to be cleared; and

b.    A description of the proposed storm water management plan for the development and consideration of impacts to drainage alterations;

3.    The dates, names, and qualifications of the persons preparing the report and documentation of any fieldwork performed on the site;

4.    Identification and characterization of all critical areas, wetlands, water bodies, and buffers adjacent to the proposed project area;

5.    A statement specifying the accuracy of the report, and all assumptions made and relied upon;

6.    An assessment of the probable cumulative impacts to critical areas resulting from development of the site and the proposed development, including a functions and values analysis;

7.    An analysis of site development alternatives including a no development alternative;

8.    A description of reasonable efforts made to apply mitigation sequencing pursuant to BMC 14.04.210, Mitigation sequencing, to avoid, minimize, and mitigate adverse impacts to critical areas;

9.    Plans for adequate mitigation, as needed, to offset any adverse impacts, in accordance with BMC 14.04.230, Mitigation plan requirements, including, but not limited to:

a.    The impacts of any proposed development within or adjacent to a critical area or buffer on the critical area; and

b.    The impacts of any proposed alteration of a critical area or buffer on the development proposal, other properties and the environment;

10.    A discussion of the performance standards applicable to the critical area and proposed activity;

11.    Financial guarantees to ensure compliance; and

12.    Any additional information required for the critical area as specified in the corresponding section.

D.    Unless otherwise provided, a critical areas report may be supplemented by or composed, in whole or in part, of any reports or studies required by other laws and regulations or previously prepared for and applicable to the development proposal site, as approved by the director. (Ord. 2010 § 1 (Exh. B), 2009; Ord. 1946 § 3, 2005).

14.04.200 Critical areas report – Modifications to requirements.

A.    Limitations to Study Area. The director may limit the required geographic area of the critical areas report as appropriate if:

1.    The applicant, with assistance from the city, cannot obtain permission to access properties adjacent to the project area; or

2.    The proposed activity will affect only a limited part of the subject site.

B.    Modifications to Required Contents. The applicant may consult with the director prior to or during preparation of the critical areas report to obtain city approval of modifications to the required contents of the report where, in the judgment of a qualified professional, more or less information is required to adequately address the potential critical area impacts and required mitigation.

C.    Additional Information Requirements. The director may require additional information to be included in the critical areas report when determined to be necessary to the review of the proposed activity in accordance with this chapter. Additional information that may be required includes, but is not limited to:

1.    Historical data, including original and subsequent mapping, aerial photographs, data compilations and summaries, and available reports and records relating to the site or past operations at the site;

2.    Grading and drainage plans; and

3.    Information specific to the type, location, and nature of the critical area. (Ord. 2010 § 1 (Exh. B), 2009; Ord. 1946 § 3, 2005).

14.04.210 Mitigation sequencing.

Applicants shall demonstrate that all reasonable efforts have been examined with the intent to avoid and minimize adverse impacts to critical areas. When an alteration to a critical area is proposed, such alteration shall be avoided, minimized, or compensated for in the following sequential order of preference:

A.    Avoiding the adverse impact altogether by not taking a certain action or parts of an action;

B.    Minimizing adverse impacts by limiting the degree or magnitude of the action and its implementation, by using appropriate technology, or by taking affirmative steps, such as project redesign, relocation, or timing, to avoid or reduce impacts;

C.    Rectifying the adverse impact to wetlands, critical aquifer recharge areas, frequently flooded areas, and habitat conservation areas by repairing, rehabilitating, or restoring the affected environment to the historical conditions or the conditions existing at the time of the initiation of the project;

D.    Minimizing or eliminating the hazard by restoring or stabilizing the hazard area through engineered or other methods;

E.    Reducing or eliminating the adverse impact or hazard over time by preservation and maintenance operations during the life of the action;

F.    Compensating for the adverse impact to wetlands, critical aquifer recharge areas, frequently flooded areas, and habitat conservation areas by replacing, enhancing, or providing substitute resources or environments; and

G.    Monitoring the hazard or other required mitigation and taking remedial action when necessary.

Mitigation for individual actions may include a combination of the above measures as appropriate. (Ord. 2010 § 1 (Exh. B), 2009; Ord. 1946 § 3, 2005).

14.04.220 Mitigation requirements.

A.    The applicant shall avoid all impacts that degrade the functions and values of a critical area or areas. Unless otherwise provided in this chapter, if alteration to the critical area is unavoidable, all adverse impacts to or from critical areas and buffers resulting from a development proposal or alteration shall be mitigated using the best available science in accordance with an approved critical areas report and SEPA documents, so as to result in no net loss of critical area functions and values.

B.    Except as otherwise provided in this chapter, mitigation shall be in-kind and on-site, when possible, and sufficient to maintain the functions and values of the critical area, and to prevent risk from a hazard posed by a critical area.

C.    Mitigation shall not be implemented until after city approval of a critical areas report that includes a mitigation plan, and mitigation shall be in accordance with the provisions of the approved critical areas report. (Ord. 2010 § 1 (Exh. B), 2009; Ord. 1946 § 3, 2005).

14.04.230 Mitigation plan requirements.

When mitigation is required, the applicant shall submit for approval by the city a mitigation plan as part of the critical areas report. The mitigation plan shall include:

A.    Environmental Goals and Objectives. The mitigation plan shall include a written report identifying environmental goals and objectives of the compensation proposed and including:

1.    A description of the anticipated impacts to the critical areas and the mitigating actions proposed and the purposes of the compensation measures, including the site selection criteria; identification of compensation goals; identification of resource functions; and dates for beginning and completion of site compensation construction activities. The goals and objectives shall be related to the functions and values of the impacted critical area;

2.    A review of the best available science supporting the proposed mitigation and a description of the report author’s experience to date in restoring or creating the type of critical area proposed; and

3.    An analysis of the likelihood of success of the compensation project.

B.    Performance Standards. The mitigation plan shall include measurable specific criteria for evaluating whether or not the goals and objectives of the mitigation project have been successfully attained and whether or not the requirements of this chapter have been met.

C.    Detailed Construction Plans. The mitigation plan shall include written specifications and descriptions of the mitigation proposed, such as:

1.    The proposed construction sequence, timing, and duration;

2.    Grading and excavation details;

3.    Erosion and sediment control features;

4.    A planting plan specifying plant species, quantities, locations, size, spacing, and density; and

5.    Measures to protect and maintain plants until established.

These written specifications shall be accompanied by detailed site diagrams, scaled cross sectional drawings, topographic maps showing slope percentage and final grade elevations, and any other drawings appropriate to show construction techniques or anticipated final outcome.

D.    Monitoring Program. The mitigation plan shall include a program for monitoring construction of the compensation project and for assessing a completed project. A protocol shall be included outlining the schedule for site monitoring (for example, monitoring shall occur in years one, three, five, and seven after site construction), and how the monitoring data will be evaluated to determine if the performance standards are being met. A monitoring report shall be submitted as needed to document milestones, successes, problems, and contingency actions of the compensation project. The compensation project shall be monitored for a period necessary to establish that performance standards have been met, but not for a period less than five years.

E.    Contingency Plan. The mitigation plan shall include identification of potential courses of action, and any corrective measures to be taken if monitoring or evaluation indicates project performance standards are not being met.

F.    Financial Guarantees. The mitigation plan shall include financial guarantees, if necessary, to ensure that the mitigation plan is fully implemented. Financial guarantees ensuring fulfillment of the compensation project, monitoring program, and any contingency measures shall be posted in accordance with BMC 14.04.310, Bonds to ensure mitigation, maintenance, and monitoring. (Ord. 2010 § 1 (Exh. B), 2009; Ord. 1946 § 3, 2005).

Article VII. Determination Process

14.04.240 Critical areas alteration permit (CAAP).

A critical area alteration permit allows the modification of critical areas or areas in conjunction with a proposed development or other use of property.

A.    Determination of Applicability. Any person seeking to determine whether a proposed activity will require a critical area alteration permit may request in writing a determination of applicability from the community development director. Such a request shall contain such plans, data, and other information as may be specified by the department of community development in its administrative rules developed for the implementation of this chapter. The community development director’s decision shall be made based upon the city’s critical area maps and inventories and any other information available to the city, a site visit to the subject property, and required special studies in accordance with BMC 14.04.190.

B.    Type of Permit. A critical areas alteration permit is a Type II action and shall be considered in accordance with the procedures for such actions as set forth in BMC Title 11.

C.    Contents of Complete Application. An application for a critical areas alteration permit shall contain the following information in addition to that required in BMC Title 11:

1.    A map using a scale of 100 feet to one inch or larger of the property indicating whether any critical area or buffer is located on the site, and if so, their boundaries. Maps and inventories of identified critical areas which are on file with the city of Bothell department of community development may be used to alert the public and staff to the possibility of the presence of a critical area as defined by BMC Title 11. An applicant is responsible, however, for indicating the presence of a critical area whether or not it is reflected on said maps.

2.    All maps, drawings, text and other materials necessary to fully describe the proposed development or other use of property, including the proposed alteration of a critical area or areas.

D.    Notification. Notification shall be in accordance with BMC Title 11.

E.    Criteria for Approval. A critical areas alteration permit shall be granted only if an applicant demonstrates and the community development director determines that after application of BMC 14.04.500 through 14.04.930 alteration of a critical area or areas is unavoidable.

F.    Time Limitation. A critical area alteration permit shall be valid for the same period of time as the underlying development permit. If there is no underlying development permit, the critical area alteration permit shall be valid for a period of one year from the date of issue and shall expire at the end of that time unless a longer period is requested by the applicant and approved by the community development director upon issuance of the permit. All activities which are not specifically listed as allowed in this chapter without a permit or which are not permitted pursuant to this chapter shall be prohibited. An extension of an original permit for an additional one year may be granted upon written request to the community development director by the original permit holder or the successor in title. Prior to the granting of an extension, the community development director may require updated studies if, in the director’s judgment, the original intent of the permit is altered or enlarged by the renewal, if the circumstances relevant to the review and issuance of the original permit have changed substantially, or if the applicant failed to abide by the terms of the original permit. (Ord. 2010 § 1 (Exh. B), 2009; Ord. 1946 § 3, 2005).

Article VIII. Variances

14.04.250 Variances.

A.    Variances from the standards of this chapter may be authorized by the city in accordance with the procedures set forth in Chapter 12.36 BMC. The hearing body shall review the request and make a written finding that the request meets or fails to meet the variance criteria.

B.    Variance Criteria. A variance may be granted only if the applicant demonstrates that the requested action conforms to all of the criteria set forth in Chapter 12.36 BMC as follows:

1.    Special conditions and circumstances exist that are peculiar to the land, the lot, or something inherent in the land, and that are not applicable to other lands in the same district;

2.    The special conditions and circumstances do not result from the actions of the applicant;

3.    A literal interpretation of the provisions of this chapter would deprive the applicant of all reasonable economic uses and privileges permitted to other properties in the vicinity and zone of the subject property under the terms of this chapter, and the variance requested is the minimum necessary to provide the applicant with such rights;

4.    Granting the variance requested will not confer on the applicant any special privilege that is denied by this chapter to other lands, structures, or buildings under similar circumstances;

5.    The granting of the variance is consistent with the general purpose and intent of this chapter, and will not further degrade the functions or values of the associated critical areas or otherwise be materially detrimental to the public welfare or injurious to the property or improvements in the vicinity of the subject property;

6.    The decision to grant the variance includes the best available science and gives special consideration to conservation or protection measures necessary to preserve or enhance anadromous fish habitat; and

7.    The granting of the variance is consistent with the general purpose and intent of the Imagine Bothell Comprehensive Plan and adopted development regulations.

C.    Conditions May Be Required. In granting any variance, the city may prescribe such conditions and safeguards as are necessary to secure adequate protection of critical areas from adverse impacts, and to ensure conformity with this chapter.

D.    Time Limit. The city shall prescribe a time limit within which the action for which the variance is required shall be begun, completed, or both. Failure to begin or complete such action within the established time limit shall void the variance.

E.    Burden of Proof. The burden of proof shall be on the applicant to bring forth evidence in support of the application and upon which any decision has to be made on the application. (Ord. 1946 § 3, 2005).

Article IX. Unauthorized Alterations and Enforcement

14.04.260 Unauthorized critical area alterations and enforcement.

A.    When a critical area or its buffer has been altered in violation of this chapter, all ongoing development work shall stop and the critical area shall be restored. The city shall have the authority to issue a stop work order to cease all ongoing development work, and order restoration, rehabilitation, or replacement measures at the owner’s or other responsible party’s expense to compensate for violation of provisions of this chapter.

B.    Requirement for Restoration Plan. All development work shall remain stopped until a restoration plan is prepared and approved by the city. Such a plan shall be prepared by a qualified professional using the best available science and shall describe how the actions proposed meet the minimum requirements described in subsection C of this section. The director shall, at the violator’s expense, seek expert advice in determining the adequacy of the plan. Inadequate plans shall be returned to the applicant or violator for revision and resubmittal.

C.    Minimum Performance Standards for Restoration.

1.    For alterations to critical aquifer recharge areas, frequently flooded areas, wetlands, and habitat conservation areas, the following minimum performance standards shall be met for the restoration of a critical area; provided, that if the violator can demonstrate that greater functional and habitat values can be obtained, these standards may be modified:

a.    The historic structural and functional values shall be restored, including water quality and habitat functions;

b.    The historic soil types and configuration shall be replicated;

c.    The critical area and buffers shall be replanted with native vegetation that replicates the vegetation historically found on the site in species types, sizes, and densities. The historic functions and values should be replicated at the location of the alteration; and

d.    Information demonstrating compliance with the requirements in BMC 14.04.230, Mitigation plan requirements, shall be submitted to the director.

2.    For alterations to flood and geological hazards, the following minimum performance standards shall be met for the restoration of a critical area; provided, that if the violator can demonstrate that greater safety can be obtained, these standards may be modified:

a.    The hazard shall be reduced to a level equal to, or less than, the pre-development hazard;

b.    Any risk of personal injury resulting from the alteration shall be eliminated or minimized; and

c.    The hazard area and buffers shall be replanted with native vegetation sufficient to minimize the hazard.

D.    Site Investigations. The director is authorized to make site inspections and take such actions as are necessary to enforce this chapter. The director shall present proper credentials and make a reasonable effort to contact any property owner before entering onto private property.

E.    Penalties. The enforcement and penalty provisions for critical areas regulations are intended to encourage compliance with this chapter and protect critical areas and the public from harm. To achieve this, violators will not only be required to restore damaged critical areas, insofar as that is possible, but will also be required to pay a civil penalty for the redress of ecological, recreational, and economic values lost or damaged due to their unlawful action.

1.    The provisions in this section are in addition to and not in lieu of any other penalty, sanction or right of action provided by law.

2.    In all cases, the owner of the land shall be named as a party to the notice and order. In addition to any other persons who may be liable for violations, the owner shall be jointly and severally liable for the restoration of a site and payment of any civil penalties imposed.

3.    Violation of this chapter means the violation of any provision of this chapter or of the administrative rules promulgated hereunder, or of any permit or approval or stop work order or any other order issued pursuant hereto, or of any of the terms and conditions of any critical area and buffer or setback area, easement or other covenant, plat restriction or binding assurance, or of any mitigation plan, or contract or agreement concluded pursuant to the abovementioned provisions of this chapter.

4.    Any person in violation of this chapter shall be subject to civil penalties assessed as follows:

a.    An amount reasonably determined by the community development director to be equivalent to the economic benefit that the violator derives from the violation as measured by the greater of the resulting increase in market value of the property or the value received by the violator, or savings of construction costs realized by the violator performing any act in violation of this chapter; and

b.    An amount, not to exceed $25,000, that is reasonably based upon the nature and gravity of the violation and the cost to the city of enforcing this chapter against the violator;

c.    Any civil penalty recovered under this section shall be deposited in the critical area mitigation fund for use by the city in protecting or restoring wetlands as set forth in BMC 14.04.500 through 14.04.550;

d.    No civil penalty shall be imposed under this chapter upon the city of Bothell or city employees for any act or omission relating to the administration or enforcement of this chapter.

5.    As an alternative to any other judicial or administrative remedy provided in this title or by law or other ordinance, any person who willfully or knowingly violates any land use or public health ordinance, or rule and regulation adopted thereunder, or any order issued pursuant to this title or by each act of commission or omission procures, aids or abets such violation, is guilty of a misdemeanor and upon conviction shall be punished by a fine not to exceed $1,000 and/or imprisonment for a term not to exceed 90 days. Each day such violation continues shall be considered an additional misdemeanor offense.

6.    Revocation or Refusal to Accept Application.

a.    In addition to the provisions of BMC Title 11, a permit or approval that is subject to review under this chapter may be revoked or suspended or a stop work order may be issued upon failure by an applicant to disclose a change of circumstances on the development proposal site which materially affects his or her ability to meet the permit or approval conditions or which makes inaccurate the special study that was the basis for imposing permit or approval conditions.

b.    In addition to any other enforcement method, to further the remedial purposes of this section, the city of Bothell can refuse to accept any application for a permit or approval for a development proposal for any property on which a violation of this chapter has occurred, on which a violation of any prior ordinance repealed by the ordinance codified in this chapter or of the administrative rules promulgated thereunder or of any permit, approval, order, easement plan or agreement issued pursuant thereto has occurred. Such refusal shall continue until the violation is cured by restoration accepted as complete by the city of Bothell and by payment of any civil penalty imposed for the violation; provided, that applications for permits or approvals shall be accepted to the extent necessary to accomplish any required cure.

c.    In order to further the remedial purpose of this section, the city of Bothell shall refuse to accept any application for a development proposal permit or approval from any person found to have violated this chapter until the violation is cured by restoration accepted as complete by the city of Bothell or a mitigation plan and performance bond to ensure completion has been approved by the city of Bothell and by payment of any civil penalty imposed for the violation; provided, that applications shall be accepted to the extent necessary to accomplish any required cure.

7.    For the purposes of this subsection, a person will be deemed to have been found in violation of this chapter when a notice and order alleging a violation is issued and not timely appealed.

8.    Any person subject to the provisions of this chapter who violates any provision of this chapter shall be liable for all damage to public or private property arising from such violation, including the cost of restoring the affected area, within a reasonable time, to its condition prior to such violation. (Ord. 1946 § 3, 2005).

Article X. General Critical Area Protective Measures

14.04.270 Critical area markers and signs.

A.    The boundary at the outer edge of critical area tracts and/or easements shall be delineated with permanent survey stakes, using iron or concrete markers as established by local survey standards.

B.    The boundary at the outer edge of the critical area or buffer shall be identified with temporary signs prior to any site alteration. Such temporary signs shall be replaced with permanent signs prior to occupancy or use of the site.

C.    These provisions may be modified by the director as necessary to ensure protection of sensitive features or wildlife needs. (Ord. 1946 § 3, 2005).

14.04.280 Notice on title.

A.    In order to inform subsequent purchasers of real property of the existence of critical areas, the owner of any property containing a critical area or buffer on which a development proposal is submitted shall file a notice with the county records and elections division according to the direction of the city. The notice shall state the presence of the critical area or buffer on the property, the application of this chapter to the property, and the fact that limitations on actions in or affecting the critical area or buffer may exist. The notice shall “run with the land.”

B.    This notice on title shall not be required for a development proposal by a public agency or public or private utility:

1.    Within a recorded easement or right-of-way;

2.    Where the agency or utility has been adjudicated the right to an easement or right-of-way; or

3.    On the site of a permanent public facility.

C.    The applicant shall submit proof that the notice has been filed for public record before the city approves any site development or construction for the property or, in the case of subdivisions, short subdivisions, planned unit developments, and binding site plans, at or before recording. (Ord. 1946 § 3, 2005).

14.04.290 Critical area tracts.

A.    All critical areas shall be placed in critical areas tracts, as follows:

1.    All landslide hazard areas and buffers;

2.    All wetlands and buffers;

3.    All habitat conservation areas; and

4.    All other lands to be protected from alterations as conditioned by project approval.

B.    Critical area tracts shall be recorded on all documents of title of record for all affected lots.

C.    Critical area tracts shall be designated on the face of the plat or recorded drawing in a format approved by the city attorney. The designation shall include the following restriction:

1.    An assurance that native vegetation will be preserved for the purpose of preventing harm to property and the environment, including, but not limited to, controlling surface water runoff and erosion, maintaining slope stability, buffering, and protecting plants, fish, and animal habitat; and

2.    The right of the city to enforce the terms of the restriction.

D.    The city may require that any required critical area tract be dedicated to the city, held in an undivided interest by each owner of a building lot within the development with the ownership interest passing with the ownership of the lot, or held by an incorporated homeowner’s association or other legal entity (such as a land trust, which ensures the ownership, maintenance, and protection of the tract). (Ord. 1946 § 3, 2005).

14.04.300 Building setbacks.

Unless otherwise provided, buildings and other structures shall be set back a distance of 15 feet from the edges of all critical area buffers or from the edges of all critical areas, if no buffers are required.14 The following may be allowed in the building setback area:

A.    Landscaping;

B.    Uncovered decks;

C.    Building overhangs, if such overhangs do not extend more than 18 inches into the setback area; and

D.    Impervious ground surfaces, such as driveways and patios; provided, that such improvements may be subject to water quality regulations as adopted in the Bothell Design and Construction Standards and Specifications and other adopted ordinances and plans. (Ord. 1946 § 3, 2005).

14.04.310 Bonds to ensure mitigation, maintenance, and monitoring.

A.    When mitigation required pursuant to a development proposal is not completed prior to the city final permit approval, such as final plat approval or final building inspection, the city shall require the applicant to post a performance bond or other security in a form and amount deemed acceptable by the city. If the development proposal is subject to mitigation, the applicant shall post a mitigation bond or other security in a form and amount deemed acceptable by the city to ensure mitigation is fully functional.

B.    The bond shall be in the amount of 125 percent of the estimated cost of the uncompleted actions or the estimated cost of restoring the functions and values of the critical area that are at risk, whichever is greater.

C.    The bond shall be in the form of a surety bond, performance bond, assignment of savings account, or an irrevocable letter of credit guaranteed by an acceptable financial institution with terms and conditions acceptable to the city attorney.

D.    Bonds or other security authorized by this section shall remain in effect until the city determines, in writing, that the standards bonded for have been met. Bonds or other security shall be held by the city for a minimum of five years to ensure that the required mitigation has been fully implemented and demonstrated to function, and may be held for longer periods when necessary; except that for critical area alteration permit applications determined to be complete between June 1, 2008, and December 31, 2009, such bonds or other security shall be held by the city for a minimum of three years.

E.    Depletion, failure, or collection of bond funds shall not discharge the obligation of an applicant or violator to complete required mitigation, maintenance, monitoring, or restoration.

F.    Public development proposals shall be relieved from having to comply with the bonding requirements of this section if public funds have previously been committed for mitigation, maintenance, monitoring, or restoration.

G.    Any failure to satisfy critical area requirements established by law or condition including, but not limited to, the failure to provide a monitoring report within 30 days after it is due or comply with other provisions of an approved mitigation plan shall constitute a default, and the city may demand payment of any financial guarantees or require other action authorized by the city code or any other law.

H.    Any funds recovered pursuant to this section shall be used to complete the required mitigation. (Ord. 2029 § 1 (Exh. B), 2009; Ord. 1946 § 3, 2005).

14.04.320 Critical area inspections.

Reasonable access to the site shall be provided to the city, state, and federal agency review staff for the purpose of inspections during any proposal review, restoration, emergency action, or monitoring period. (Ord. 1946 § 3, 2005).

Article XI. Wetlands

Designation, Rating, and Mapping

14.04.500 Designation, rating, and mapping wetlands.

A.    Designating Wetlands. Wetlands are those areas, designated in accordance with the Washington State Wetland Identification and Delineation Manual (1997), that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation adapted for life in saturated soil conditions. All areas within the city meeting the wetland designation criteria in the Identification and Delineation Manual, regardless of any formal identification, are hereby designated critical areas and are subject to the provisions of this chapter.

B.    Wetland Ratings.15 Wetlands shall be rated according to the Washington State Department of Ecology wetland rating system found in the Washington State Wetland Rating System documents (Washington State Wetland Rating Manual for Western Washington (revised), Department of Ecology Document No. 04-06-025) or as revised by Ecology. These documents contain the definitions and methods for determining if the criteria below are met.

1.    Wetland Rating Categories.

a.    Category I. Category I wetlands are those wetlands that (i) represent a unique or rare wetland type; or (ii) are more sensitive to disturbance than most wetlands; or (iii) are relatively undisturbed and contain ecological attributes that are impossible to replace within a human lifetime; or (iv) provide a high level of functions. These include bogs, mature and old-growth forested wetlands, and wetlands that perform many functions very well (score 70 points or more (out of 100) on a completed rating form for the appropriate hydro-geomorphic class).

b.    Category II. Category II wetlands are difficult, though not impossible, to replace, and provide high levels of some functions. These wetlands occur more commonly than Category I wetlands, but still need a relatively high level of protection. Because there are no estuarine or inter-dunal wetlands in Bothell, Category II wetlands are those that score between 51 and 69 (out of 100) points. Wetlands scoring 51 to 69 points were judged to perform most functions relatively well, or performed one group of functions very well and the other two moderately well.

c.    Category III. Category III wetlands are wetlands with a moderate level of functions (scores between 30 and 50 points out of 100). Wetlands scoring between 30 and 50 points generally have been disturbed in some ways, and are often less diverse or more isolated from other natural resources in the landscape than Category II wetlands.

d.    Category IV. Category IV wetlands have the lowest levels of functions (scores less than 30 points out of 100) and are often heavily disturbed. These are wetlands that should be able to be replaced, and in some cases be able to be improved. However, experience has shown that replacement cannot be guaranteed in any specific case. These wetlands may provide some important functions, and also need to be protected.

2.    Date of Wetland Rating. Wetland rating categories shall be applied as the wetland exists on the date of adoption of the rating system by the local government, as the wetland naturally changes thereafter, or as the wetland changes in accordance with permitted activities. Wetland rating categories shall not change due to illegal modifications.

C.    Mapping. The approximate location and extent of wetlands are shown on the adopted critical area maps. The following critical area maps, including locally adopted maps, are hereby adopted. Additionally, soil maps produced by U.S. Department of Agriculture National Resources Conservation Service may be useful in helping to identify potential wetland areas.

    These maps are to be used as a guide for the city, project applicants, and/or property owners, and may be continuously updated as new critical areas are identified. They are a reference and do not provide a final critical area designation.

    The exact location of a wetland’s boundary shall be determined through the performance of a field investigation by a qualified professional wetland scientist applying the Washington State Wetlands Identification and Delineation Manual as required by RCW 36.70A.175 (Ecology Publication No. 96-94, 1997). (Ord. 2010 § 1 (Exh. B), 2009; Ord. 1946 § 3, 2005).

Allowed Activities

14.04.510 Activities allowed in wetlands.

The activities listed below are allowed in wetlands in addition to those activities listed in, and consistent with, the provisions established in BMC 14.04.150, Allowed activities, and do not require submission of a critical area report, except where such activities result in a loss to the functions and values of a wetland or wetland buffer. These activities include:

A.    Conservation or preservation of soil, water, vegetation, fish, shellfish, and other wildlife that does not entail changing the structure or functions of the existing wetland.

B.    The harvesting of wild crops in a manner that is not injurious to natural reproduction of such crops and provided the harvesting does not require tilling of soil, planting of crops, chemical applications, or alteration of the wetland by changing existing topography, water conditions, or water sources.

C.    Drilling for utilities under a wetland; provided, that the drilling does not interrupt the groundwater connection to the wetland or percolation of surface water down through the soil column. Specific studies by a hydrologist are necessary to determine whether the groundwater connection to the wetland or percolation of surface water down through the soil column is disturbed.

D.    Enhancement of a wetland through the removal of nonnative invasive species. Weeding shall be restricted to hand removal and weed material shall be removed from the site. Bare areas that remain after weed removal shall be revegetated with native shrubs and trees at natural densities. Some hand seeding may also be done over the bare areas with native herbs. (Ord. 2010 § 1 (Exh. B), 2009; Ord. 1946 § 3, 2005).

Additional Report Requirements

14.04.520 Critical area report – Additional requirements for wetlands.

In addition to the general critical area report requirements of BMC 14.04.190, critical area reports for wetlands must meet the requirements of this section. Critical area reports for two or more types of critical areas must meet the report requirements for each relevant type of critical area.

A.    Preparation by a Qualified Professional. A critical area report for wetlands shall be prepared by a qualified professional who is a certified professional wetland scientist or a noncertified professional wetland scientist with a minimum of five years experience in the field of wetland science and with experience preparing wetland reports.

B.    Area Addressed in Critical Area Report. The following areas shall be addressed in a critical area report for wetlands:

1.    The project area of the proposed activity;

2.    All wetlands and recommended buffers within 300 feet of the project area;16 and

3.    All shoreline areas, water features, floodplains, and other critical areas, and related buffers within 300 feet of the project area.

C.    Wetland Analysis. In addition to the minimum required contents of BMC 14.04.190, Critical area reports – Requirements, a critical area report for wetlands shall contain an analysis of the wetlands including the following site- and proposal-related information at a minimum:

1.    A written assessment and accompanying maps of the wetlands and buffers within 300 feet of the project area, including the following information at a minimum:

a.    Wetland delineation and required buffers;

b.    Existing wetland acreage;

c.    Wetland category;

d.    Vegetative, faunal, and hydrologic characteristics;

e.    Soil and substrate conditions;

f.    Topographic elevations, at two-foot contours; and

g.    A discussion of the water sources supplying the wetland and documentation of hydrologic regime (locations of inlet and outlet features, water depths throughout the wetland, evidence of recharge or discharge, evidence of water depths throughout the year – drift lines, algal layers, moss lines, and sediment deposits).

2.    A discussion of measures, including avoidance, minimization, and mitigation, proposed to preserve existing wetlands and restore any wetlands that were degraded prior to the current proposed land use activity.

3.    A habitat and native vegetation conservation strategy that addresses methods to protect and enhance on-site habitat and wetland functions.

4.    Functional evaluation for the wetland and adjacent buffer using the Washington State Wetland Rating System for Western Washington (revised), Department of Ecology Publication No. 04-06-025 and including the reference of the method and all data sheets.

5.    Proposed mitigation, if needed, including a written assessment and accompanying maps of the mitigation area, including the following information at a minimum:

a.    Existing and proposed wetland acreage;

b.    Vegetative and faunal conditions;

c.    Surface and subsurface hydrologic conditions including an analysis of existing and future hydrologic regime and proposed hydrologic regime for enhanced, created, or restored mitigation areas;

d.    Relationship within watershed and to existing water bodies;

e.    Soil and substrate conditions, topographic elevations;

f.    Existing and proposed adjacent site conditions;

g.    Required wetland buffers (including any buffer reduction and mitigation proposed to increase the plant densities, remove weedy vegetation, and replant the buffers);

h.    Property ownership; and

i.    Associated wetlands and related wetlands that may be greater than 300 feet from the subject project.

6.    A scale map of the development proposal site and adjacent area. A discussion of ongoing management practices that will protect wetlands after the project site has been developed; including proposed monitoring and maintenance programs.

7.    A bond estimate for the installation (including site preparation, plant materials and installation, fertilizers, mulch, stakes) and the proposed monitoring and maintenance work for the required number of years.

8.    Title Notification. All activity in critical area protection areas shall be accompanied by a title.

D.    Additional Information. When appropriate, the director may also require the critical area report to include an evaluation by the state Department of Ecology or an independent qualified expert regarding the applicant’s analysis and the effectiveness of any proposed mitigating measures or programs, and to include any recommendations as appropriate.

1.    If the development proposal site contains or is within a wetland area, the applicant shall submit an affidavit, which declares whether the applicant has knowledge of any illegal alteration to any or all wetlands on the proposed site and whether the applicant previously had been found in violation of this chapter. If the applicant has been found previously in violation, the applicant shall declare whether such violation has been corrected to the satisfaction of the jurisdiction.

2.    The director shall determine if the mitigation and monitoring plans and bonding measures proposed by the applicant are sufficient to protect the public health, safety, and welfare, consistent with the goals, purposes, objectives and requirements of this chapter. (Ord. 2010 § 1 (Exh. B), 2009; Ord. 1946 § 3, 2005).

Performance Standards

14.04.530 Performance standards – General requirements.

A.    Activities may only be permitted in a wetland or wetland buffer if the applicant can show that the proposed activity will not degrade the functions and functional performance of the wetland and other critical areas. Mitigation shall be performed in accordance with the preferred sequencing shown in BMC 14.04.540(A).

B.    Activities and uses shall be prohibited in wetlands and wetland buffers, except as provided for in this chapter.

C.    Category I Wetlands. Activities and uses shall be prohibited from Category I, except as provided for in the public agency and utility exception, reasonable use exception, and variance sections of this chapter.

D.    Category II and III Wetlands. With respect to activities proposed in Category II and III wetlands, the following standards shall apply:

1.    Water-dependent activities may be allowed where there are no practicable alternatives that would have a less adverse impact on the wetland, its buffers and other critical areas.

2.    Where nonwater-dependent activities are proposed, it shall be presumed that alternative locations are available, and activities and uses shall be prohibited, unless the applicant demonstrates that:

a.    The basic project purpose cannot reasonably be accomplished and successfully avoid, or result in less adverse impact on, a wetland on another site or sites in the general region; and

b.    All alternative designs of the project as proposed, that would avoid or result in less of an adverse impact on a wetland or its buffer, such as a reduction in the size, scope, configuration, or density of the project, are not feasible.

E.    Category IV Wetlands. Activities and uses that result in unavoidable and necessary adverse impacts may be permitted in Category IV wetlands and associated buffers in accordance with an approved critical area report and mitigation plan, and only if the proposed activity is the only reasonable alternative that will accomplish the applicant’s objectives. Full compensation for the acreage and loss functions will be provided under the terms established under BMC 14.04.540(F) and (G).

F.    Wetland Buffers.

1.    Buffer Widths.

a.    Standard Buffer Widths. The standard buffer widths presume the existence of a relatively intact native vegetation community in the buffer zone adequate to protect the existing wetland functions and values at the time of the proposed activity. If the vegetation is inadequate, then the buffer width should be planted to maintain the standard width. Required standard wetland buffers, based on wetland category and habitat score, are as follows:17

Wetland Category

Habitat Score3

Standard Buffer Width1

Minimum Width2

I

20 or greater

125 feet

100 feet

 

Less than 20

100 feet

75 feet

II

20 or greater

125 feet

100 feet

 

Less than 20

100 feet

75 feet

III

20 or greater

100 feet

75 feet

 

Less than 20

75 feet

50 feet

IV

 

50 feet

37.5 feet4

1    Presumes buffer consists of relatively intact native vegetation.

2    Minimum width may not apply to wetlands with nonstandard buffer widths.

3    For detailed description see the Washington State Wetland Rating System for Western Washington (revised), Department of Ecology Publication No. 04-06-025.

4    Minimum width of less than 50 feet may only be sought in combination with extensive wetland and buffer enhancements as provided for within BMC 14.04.540(C)(3) and (F)(2)(a).

b.    Nonstandard Buffer Widths. Where existing physical conditions prevent establishment of a full wetland buffer, buffer widths may be reduced as follows:

i.    Where a legally established roadway transects the buffer, the buffer edge shall extend to the edge of the roadway nearest the wetland.

2.    Decreased Buffer Widths. In accordance with an approved critical areas report, buffer widths may be reduced, but not below the minimum buffer width prescribed in the table shown in subsection (F)(1)(a) of this section, as follows:

a.    Buffer Enhancement. Buffer widths for Category I, II, and III wetlands may be reduced up to 25 feet and up to 12.5 feet for Category IV wetlands when buffer enhancement is performed that increases the existing functions and values beyond that which the wetland would achieve with a standard buffer width. When a Category IV wetland and its associated buffer are part of a recognized wildlife corridor as identified within a critical areas report as required pursuant to BMC 14.04.190, the 12.5-foot buffer reduction shall not be allowed. Buffer quality will be evaluated by a qualified wetlands biologist and verified by the city’s third-party biologist;

    or:

b.    Impact Mitigation. The director may approve a reduction in the buffer width of up to 25 feet for Category I, II, and III wetlands if one or more of the following mitigating conditions exist or are provided:

i.    Groundwater Recharge. Where site storm water from impervious surfaces is collected, treated, and infiltrated into the ground above the wetland and the infiltration system is recorded on the title to the property on which it is located.

    or:

ii.    Physical Barriers. Where dense vegetation, such as rose and/or hawthorn is planted, at the outer edge of the wetland buffer to minimize animal and/or human intrusion into the wetland.

3.    Increased Wetland Buffer Widths. The director shall consider, and may require increased buffer widths, up to 25 feet, in accordance with the recommendations of an experienced, qualified professional wetland scientist, and the best available science on a case-by-case basis when a larger buffer is necessary to protect existing wetland functions and values based on site-specific characteristics. This determination shall be based on one or more of the following criteria:

a.    A larger buffer is needed to protect other critical areas;

b.    Wetlands within 25 feet of the toe of slopes equal to or greater than 15 percent shall have the following buffers:

i.    Where the horizontal length of the slope including small benches and terraces is within the buffer for that wetland category, the buffer width shall be the greater of:

(A)    The required buffer for that wetland category; or

(B)    Twenty-five feet beyond the toe of the slope.

ii.    Where the horizontal length of the slope extends beyond the required buffer for that wetland category, the buffer shall extend to a point 25 feet beyond the required buffer for that wetland category.

c.    The buffer area has minimal vegetative cover. In lieu of increasing the buffer width where existing buffer vegetation is inadequate to protect the existing wetland functions and values, implementation of a buffer planting plan developed by a qualified wetland scientist in accordance with an approved critical areas report may substitute. Existing buffer vegetation is considered “inadequate” and will need to be enhanced through additional native plantings and (if appropriate) removal of nonnative plants when: (i) nonnative or invasive plant species provide the dominant cover, (ii) vegetation is lacking due to disturbance and wetland resources could be adversely affected, or (iii) enhancement plantings in the buffer could significantly improve buffer functions.

d.    Buffer widths may vary for any one wetland based on its existing characteristics. It is understood that gradual transition zones will be employed between one buffer width and another. The required buffer width may be increased if any of the following circumstances exist:

i.    Species listed by the federal government or the state of Washington as endangered, threatened, sensitive or priority, or essential or outstanding actual habitat for those species, or plant associations of infrequent occurrence are present;

ii.    Unusual nesting or resting sites such as heron rookeries or raptor nesting or lookout trees are present;

iii.    The wetland has been identified as providing a particularly important water quality maintenance or flood control function, or is particularly sensitive to erosion and/or sedimentation.

4.    Wetland Buffer Width Averaging. The director may allow modification of the standard wetland buffer width in accordance with an approved critical areas report and the best available science on a case-by-case basis by averaging buffer widths. Averaging of buffer widths may only be allowed where a qualified professional wetland scientist demonstrates that:

a.    It will not reduce wetland functions or functional performance;

b.    The wetland contains variations in sensitivity due to existing physical characteristics or the character of the buffer varies in slope, soils, or vegetation, and the wetland would benefit from a wider buffer in places and would not be adversely impacted by a narrower buffer in other places;

c.    The total area contained in the buffer area after averaging is no less than that which would be contained within the standard buffer; and

d.    The buffer width is not reduced to less than 75 percent of the standard buffer width, and in any case to not less than 50 feet except that for Category IV wetlands, the buffer width may be reduced to 37.5 feet when extensive wetland and buffer enhancements as identified within subsection (F)(2)(a) of this section and BMC 14.04.540(C)(3) are provided and the Category IV wetland and its associated buffer is not part of a recognized wildlife corridor as identified within a critical areas report as required pursuant to BMC 14.04.190.

5.    Measurement of Wetland Buffers.

a.    All buffers shall be measured from the wetland boundary as surveyed in the field.

b.    The buffer for a wetland created, restored, or enhanced as compensation for approved wetland alterations shall be the same as the buffer required for the category of the created, restored, or enhanced wetland. Only fully vegetated buffers will be considered. Lawns, walkways, driveways, and other mowed or paved areas will not be considered buffers.

6.    Buffer Consistency. All mitigation sites shall have buffers consistent with the buffer requirements of this chapter.

7.    Buffer Maintenance. Except as otherwise specified or allowed in accordance with this chapter, wetland buffers shall be retained in an undisturbed or enhanced condition. Removal of invasive nonnative weeds is required for the duration of the mitigation bond.

8.    Buffer Uses. The following uses may be permitted within a wetland buffer in accordance with the review procedures of this chapter, provided they are not prohibited by any other applicable law and they are conducted in a manner so as to minimize adverse impacts to the buffer and adjacent wetland:

a.    Conservation and Restoration Activities. Conservation or restoration activities aimed at protecting the soil, water, vegetation, or wildlife.

b.    Passive Recreation. Passive recreation facilities designed and in accordance with an approved critical areas report, including:

i.    Walkways and trails; provided, that those pathways that are generally parallel to the perimeter of the wetland shall, where practicable, be located in the outer one-third of the buffer area. Surface permeability of walkways and trails shall be considered where applicable. Raised boardwalks utilizing nontreated pilings area may be acceptable. Buffer widths shall be increased, where practicable, equal to the width of the trail corridor;

ii.    Wildlife viewing structures; and

iii.    Fishing access areas down to the water’s edge that shall be no larger than six feet.

c.    Storm Water Management Facilities. If determined to be unavoidable, the location of storm water retention/detention facilities, including access to serve the facilities, in wetland buffers; provided, that compensatory mitigation is performed in accordance with this section.

G.    Signs and Fencing of Wetlands.

1.    Temporary Markers. The outer perimeter of the wetland or buffer and the limits of those areas to be disturbed pursuant to an approved permit or authorization shall be marked in the field in such a way as to ensure that no unauthorized intrusion will occur and is subject to inspection by the director prior to the commencement of permitted activities. This temporary marking shall be maintained throughout construction and shall not be removed until permanent signs, if required, are in place.

2.    Permanent Signs. As a condition of any permit or authorization issued pursuant to this chapter, the director may require the applicant to install permanent signs along the boundary of a wetland or buffer.

a.    Permanent signs shall be made of an enamel-coated metal face and attached to a metal post, or another nontreated material of equal durability. Signs must be posted at an interval of one per lot or every 50 feet, whichever is less, and must be maintained by the property owner in perpetuity. The sign shall be worded as follows or with alternative language approved by the director:

Protected Wetland Area

Do Not Disturb

Contact the City of Bothell

Regarding Uses and Restriction

b.    The provisions of subsection (G)(2)(a) of this section may be modified as necessary to assure protection of sensitive features or wildlife.

3.    Fencing.

a.    The director shall determine if fencing is necessary to protect the functions and values of the critical area. If found to be necessary, the director shall condition any permit or authorization issued pursuant to this chapter to require the applicant to install a permanent fence at the edge of the wetland buffer, when fencing will prevent future adverse impacts to the wetland.

b.    The applicant shall be required to install a permanent fence around the wetland or buffer when domestic grazing animals are present or may be introduced on site.

c.    Fencing installed as part of a proposed activity or as required in this subsection shall be designed so as to not interfere with species migration, including fish runs, and shall be constructed in a manner that minimizes adverse impacts to the wetland and associated habitat. (Ord. 2010 § 1 (Exh. B), 2009; Ord. 1946 § 3, 2005).

14.04.540 Performance standards – Compensatory mitigation requirements.

Compensatory mitigation for alterations to wetlands shall achieve equivalent or greater biologic functions. Compensatory mitigation plans shall be consistent with the state Department of Ecology Guidelines for Developing Freshwater Wetlands Mitigation Plans and Proposals, 1994, as revised.

A.    Mitigation shall be required in the following order of preference:

1.    Avoiding the adverse impact altogether by not taking a certain action or parts of an action.

2.    Minimizing adverse impacts by limiting the degree or magnitude of the action and its implementation, by using appropriate technology, or by taking affirmative steps to avoid or reduce impacts.

3.    Rectifying the adverse impact by repairing, rehabilitating, or restoring the affected environment.

4.    Reducing or eliminating the adverse impact over time by preservation and maintenance operations.

5.    Compensating for the adverse impact by replacing, enhancing, or providing substitute resources or environments.

Application of the above mitigation order of preference shall be consistent with guidance from the state Department of Ecology, Volume 2, Wetlands Manual by providing for a higher avoidance threshold for wetlands, such as Category I or II wetlands, which perform a high level of functions than the avoidance threshold for wetlands, such as Category IV wetlands, which provide a low level of functions.

B.    Mitigation for Lost or Affected Functions. Compensatory mitigation actions shall address functions affected by the alteration to achieve functional equivalency or improvement and shall provide similar wetland functions as those lost, except when:

1.    The lost wetland provides minimal functions as determined by a site-specific function assessment, and the proposed compensatory mitigation action(s) will provide equal or greater functions or will provide functions shown to be limiting within a watershed through a formal Washington state watershed assessment plan or protocol; or

2.    Out-of-kind replacement will best meet formally identified watershed goals, such as replacement of historically diminished wetland types.

C.    Preference of Mitigation Actions. Compensatory mitigation actions shall address functions affected by the alteration to achieve functional equivalency or improvement. Mitigation actions that require compensation shall occur in the following order of preference:

1.    Restoring wetlands on upland sites that were formerly wetlands. Wetland restoration refers to actions performed to re-establish wetland functional characteristics and processes that have been lost by alterations, activities, or catastrophic events within an area that no longer meets the definition of a wetland.

2.    Creating wetlands on disturbed upland sites such as those with vegetative cover consisting primarily of nonnative introduced species. Wetlands creation refers to actions performed to intentionally establish a wetland at a site where it did not formerly exist. Creation should only be attempted when there is a consistent source of hydrology and it can be shown that the surface and subsurface hydrologic regime is conducive for the wetland community that is being designed.

3.    Enhancing significantly degraded wetlands in combination with restoration or creation. Enhancement refers to actions performed to improve the condition of existing degraded wetlands so that the functions they provide are of a higher quality. Such enhancement should be part of a mitigation package that includes replacing the impacted area meeting appropriate ratio requirements.

D.    Type and Location of Mitigation. Unless it is demonstrated that a higher level of ecological functioning would result from an alternate approach, such as a mitigation bank located within Watershed Resource Inventory Area (WRIA) 8 or a city of Bothell-sponsored fee-in-lieu program, compensatory mitigation for ecological functions shall be either in-kind and on-site, or in-kind and within the same stream reach, subbasin, or drift cell. Mitigation actions shall be conducted within the same sub-drainage basin and on the site as the alteration except when all of the following apply:

1.    There are no reasonable on-site or in-sub-drainage basin opportunities or on-site and in-sub-drainage basin opportunities do not have a high likelihood of success, after a determination of the natural capacity of the site to mitigate for the adverse impacts. Consideration should include: anticipated wetland mitigation replacement ratios; buffer conditions and proposed widths; hydrogeomorphic classes of on-site wetlands when restored; proposed flood storage capacity; and potential to mitigate riparian fish and wildlife impacts (such as connectivity);

2.    Off-site mitigation has a greater likelihood of providing equal or improved wetland functions than the impacted wetland; and

3.    Off-site locations shall be in the same sub-drainage basin unless:

a.    Established watershed goals for water quality, flood or conveyance, habitat, or other wetland functions have been established and strongly justify location of mitigation at another site; or

b.    Credits from a state-certified wetland mitigation bank located within the Sammamish River, North Creek, or Swamp Creek drainage basin are used as mitigation and the use of credits is consistent with the terms of the bank’s certification;

c.    The mitigation occurs as part of a city of Bothell-sponsored fee-in-lieu program;

d.    Wetponds established and maintained for control of surface water shall not constitute replacement or enhancement for wetland alterations.

E.    Mitigation Timing. Mitigation projects shall be completed with an approved monitoring plan prior to activities that will disturb wetlands. In all other cases, mitigation shall be completed immediately following disturbance and prior to use or occupancy of the activity or development. Construction of mitigation projects shall be timed to reduce adverse impacts to existing fisheries, wildlife, and flora.

    The director may authorize a one-time temporary delay, up to 120 days, in completing minor construction and landscaping when environmental conditions could produce a high probability of failure or significant construction difficulties. The delay shall not create or perpetuate hazardous conditions or environmental damage or degradation, and the delay shall not be injurious to the health, safety, and general welfare of the public. The request for the temporary delay must include a written justification that documents the environmental constraints that preclude implementation of the mitigation plan. The justification must be verified and approved by the city and include a financial guarantee.

F.    Mitigation Ratios.

1.    Acreage Replacement Ratios. The following ratios shall apply to creation or restoration that is in-kind, is on-site, is the same category, is timed prior to or concurrent with alteration, and has a high probability of success. These ratios do not apply to remedial actions resulting from unauthorized alterations; greater ratios shall apply in those cases. These ratios do not apply to the use of credits from a state certified wetland mitigation bank. When credits from a certified bank are used, replacement ratios should be consistent with the requirements of the bank’s certification. The first number specifies the acreage of replacement wetlands and the second specifies the acreage of wetlands altered.18

Category I

6-to-1

Category II

3-to-1

Category III

2-to-1

Category IV

1.5-to-1

2.    Increased Replacement Ratio. The director may increase the ratios under the following circumstances:

a.    Uncertainty exists as to the probable success of the proposed restoration or creation;

b.    A significant period of time will elapse between adverse impact and replication of wetland functions;

c.    Proposed mitigation will result in a lower category wetland or reduced functions relative to the wetland being adversely impacted; or

d.    The impact was an unauthorized impact.

G.    Wetlands Enhancement as Mitigation.

1.    Adverse impacts to wetland functions may be mitigated by enhancement of existing significantly degraded wetlands, but must be used in conjunction with restoration and/or creation. Applicants proposing to enhance wetlands must produce a critical areas report that identifies how enhancement will increase the functions of the degraded wetland and how this increase will adequately mitigate for the loss of wetland area and function at the impact site. An enhancement proposal must also show whether existing wetland functions will be reduced by the enhancement actions.

2.    At a minimum, enhancement acreage shall be double the acreage required for creation or restoration under subsection F of this section. The ratios shall be greater than double the required acreage where the enhancement proposal would result in minimal gain in the performance of wetland functions and/or result in the reduction of other wetland functions currently being provided in the wetland.

3.    Mitigation rations for enhancement in combination with other forms of mitigation shall range form 6:1 to 3:1 and be limited to Category III and Category IV wetlands. (Ord. 2010 § 1 (Exh. B), 2009; Ord. 1946 § 3, 2005).

14.04.550 Performance standards – Subdivisions.

The subdivision and short subdivision of land in wetlands and associated buffers is subject to the following:

A.    Land that is located wholly within a Category I, II or III wetland or its buffer may not be subdivided.

B.    Land that is located partially within a Category I, II or III wetland or its buffer may be subdivided; provided, that an accessible and contiguous portion of each new lot is:

1.    Located outside of the wetland and its buffer; and

2.    Meets the minimum lot size requirements of BMC Title 12.

C.    Land that is located wholly or partially within a Category IV wetland may be subdivided if an acceptable mitigation plan is proposed. If the alteration of the wetland and/or its buffer is determined appropriate by the community development director after application of BMC 14.04.210, 14.04.220, 14.04.530, and 14.04.540 and other applicable requirements of this chapter, then the subdivision may:

1.    Include that portion of the wetland and buffer approved for alteration as part of a lot or lots within the subdivision; and

2.    Include that portion of the wetland and buffer approved for alteration as part of a street or utility corridor serving the subdivision.

D.    Access roads and utilities serving the proposed subdivision may be permitted within the wetland and associated buffers only if the city determines that no other feasible alternative exists and when consistent with this chapter. (Ord. 2010 § 1 (Exh. B), 2009; Ord. 1946 § 3, 2005).

Article XII. Critical Aquifer Recharge Areas

Designation and Mapping

14.04.600 Designation of critical aquifer recharge areas.

A.    Potable water is an essential life sustaining element. Once groundwater is contaminated, it is difficult, costly, and sometimes impossible to clean up. Preventing contamination is necessary to avoid exorbitant costs, hardships, and potential physical harm to the public. It is the city of Bothell’s intent, through this section of the critical areas regulations, to recognize the importance of aquifers and to acknowledge a responsibility common to all governmental agencies to ensure, as much as possible through each jurisdiction’s powers to protect the health, safety and welfare of the public, the continued quantity and quality of groundwater supplies through the regulation of land uses which may contribute contamination that may degrade groundwater quality and/or quantity in recharge areas of vulnerability. The extent of regulation shall be based on the degree of vulnerability of an identified recharge area and the contaminant loading potential of the proposed land use.

B.    Where it is determined through special studies or city of Bothell mapping projects that soil and geologic formation permeability exists such that the presence of a groundwater recharge area is likely, the community development director may require further investigation by the applicant of the existence of recharge areas when the proposed land use involved is considered to be of a type or intensity that has a high contamination potential. Such uses may include, but are not limited to, planned unit developments, waste disposal sites, or agriculture activities. (Ord. 1946 § 3, 2005).

Additional Report Requirements

14.04.610 Critical areas report – Additional requirements for critical aquifer recharge areas.

Any additional required special study shall address, but are not limited to, the following:

A.    Depth of groundwater;

B.    Aquifer properties such as hydraulic conductivity and gradients;

C.    Soil texture, permeability, and contaminant attenuation properties;

D.    Characteristics of the vadose zone (the unsaturated top layer of soil and geologic material) including permeability and attenuation properties; or

E.    Other relevant factors. (Ord. 1946 § 3, 2005).

Performance Standards

14.04.620 General requirements.

Based upon information provided in any required special report or study, the community development director shall determine conditions of development which will ensure, to the extent possible, no degradation of groundwater quantity or quality. Such conditions shall be attached to a critical areas alteration permit when required as a result of the presence of any other critical area or to any other permit required by the project or approval of a rezone application or certification of zoning compliance for either tenancy or new construction. (Ord. 1946 § 3, 2005).

Article XIII. Frequently Flooded Areas

14.04.700 Designation of frequently flooded areas.

Frequently flooded or special flood hazard areas are lands subject to a one percent or greater chance of flooding in any given year; otherwise known as the “100-year” flood or the “base” flood. These areas could include, but are not limited to, streams, lakes, wetlands and their associated floodplains, flood fringes or areas identified by the Federal Insurance Administration in a scientific and engineering report entitled “The Flood Insurance Study for King County, Washington and Incorporated Areas” dated March 30, 1998, and any revisions thereto, and “The Flood Insurance Study for Snohomish County, Washington, and Incorporated Areas,” dated November 8, 1999, and any revisions thereto, with accompanying FIRMs are hereby adopted by reference and declared to be part of this chapter. The flood insurance studies and FIRMs are on file at the office of the city clerk. (Ord. 1946 § 3, 2005).

14.04.710 Findings and intent.

A.    Frequently flooded or flood hazard areas are subject to periodic inundation which results in loss of life and property, health, and safety hazards, disruption of commerce and governmental services, extraordinary public expenditures for flood protection and relief, and impairment of the tax base, all of which adversely affect the public health, safety, and general welfare. These flood losses are caused by the cumulative effect of obstructions in areas of special flood hazards which increase flood heights and velocities, and when inadequately anchored, damage uses in other areas. Uses that are inadequately floodproofed, elevated, or otherwise protected from flood damage or which are inappropriately located in the floodplain also contribute to the flood loss.

B.    It is the intent of the city of Bothell, by way of this article, to reduce, minimize and/or prevent the public and private losses noted above and to promote the public health, safety and general welfare, through the regulation of development within frequently flooded areas designed to:

1.    Restrict or prohibit uses which are dangerous to health, safety and property due to water or erosion hazards, or which result in damaging increases in erosion or in flood heights or velocities;

2.    Require that uses vulnerable to floods, including facilities which serve such uses, be protected against flood damage at the time of initial construction;

3.    Control and minimize the alteration of natural floodplains, stream channels and natural protective barriers which help accommodate or channel floodwaters;

4.    Control filling, grading, dredging and other development which may increase flood damage; and

5.    Prevent or regulate the construction of flood barriers which will unnaturally divert floodwaters or which may increase flood hazards in other areas. (Ord. 1946 § 3, 2005).

14.04.720 Administration.

A.    Critical Areas Alteration Permit (CAAP). A CAAP shall be obtained before construction or development begins within any area of special flood hazard as defined by this chapter. The permit shall be for all structures including manufactured homes, and for all other developments including fill and other activities.

B.    Designation of the Local Flood Management Administrator. The public works director is administrator. The public works director is appointed to administer and implement this section by reviewing permit applications in accordance with its provisions and providing final findings to the community development director who shall issue or deny the CAAP based on said findings.

C.    Duties and Responsibilities of the Local Flood Management Administrator. Duties of the local flood management administrator shall include, but not be limited to:

1.    Permit Review.

a.    Review all permit applications within areas of special flood hazard to determine that the requirements of this chapter and this section have been satisfied;

b.    Review all permit applications within areas of special flood hazard to determine that all necessary permits have been obtained from those federal, state or local governmental agencies from which prior approval is required;

c.    Review all permit applications within areas of special flood hazard to determine if the proposed development is located in the floodway. If located in the floodway, assure that the encroachment provisions of BMC 14.04.760(A)(3)(l) of this section are met.

2.    Use of Other Base Flood Data.

a.    When base flood elevation data has not been provided, the local flood management administrator shall obtain, review and reasonably utilize any base flood elevation and floodway data available from a federal, state or other source, in order to fulfill his or her duties and responsibilities under this chapter.

b.    Review of Building Permits. Where base flood elevation data has not been provided or is not available either through the flood insurance study or from another authoritative source, applications for building permits shall be reviewed to assure that proposed construction will be reasonably safe from flooding. The test of reasonableness is the judgment of the city engineer and includes use of historical data, high water marks, photographs of past flooding, etc., where available. Failure to elevate at least two feet above the highest adjacent grade in these zones may result in higher insurance rates. (Ord. 1946 § 3, 2005).

14.04.730 Relationship to other critical areas regulations.

In addition to the provisions of this article, requirements for buffers, sensitive area tracts, development setback lines, permitted alterations, mitigation and monitoring for a development proposal site on or adjacent to a flood hazard area shall be as established elsewhere in this chapter for the streams, wetlands, wildlife habitat conservation areas or other critical areas which form the constituent elements of the floodplain. (Ord. 1946 § 3, 2005).

14.04.740 Information to be obtained and maintained.

A.    Where base flood data is provided through the flood insurance study or as required in BMC 14.04.720(C)(2)(a), obtain and record the actual elevation (in relation to mean sea level) of the lowest floor (including basement) of all new or substantially improved structures, and whether or not the structure contains a basement.

B.    For all new or substantially improved floodproofed structures in a special flood hazard area:

1.    Verify and record the actual elevation in relation to sea level to which the structure was floodproofed; and

2.    Maintain the floodproofing certifications required by this article. The applicant must provide certification by a professional civil engineer or land surveyor licensed in the state of Washington of the actual as-built elevation of the lowest floor, including basement (in relation to mean sea level), and, if applicable, the actual as-built elevation to which the structure is floodproofed. If the structure has a basement, this must be indicated.

3.    Maintain for public inspection all records pertaining to the provisions of this article. (Ord. 1946 § 3, 2005).

14.04.750 Other agencies.

In all flood hazard areas, the city of Bothell shall honor all existing contractual obligations with any federal agency. (Ord. 1946 § 3, 2005).

14.04.760 Development regulations.

A.    Any activities in a special flood hazard area as defined by this chapter shall require a critical areas alteration permit (CAAP) and shall be subject to the requirements of this article and BMC 14.04.240.

1.    Alteration of Watercourses.

a.    Notify adjacent communities and the Department of Ecology prior to any alteration or relocation of a watercourse, and submit evidence of such notification to the Federal Insurance Administration.

b.    Require that maintenance is provided within the altered or relocated portion of said watercourse so that the flood-carrying capacity is not diminished.

2.    Interpretation of FIRM Boundaries. Make interpretations where needed, as to exact location of the boundaries of the areas of special flood hazards. The person contesting the location of the boundary shall be given a reasonable opportunity to appeal the interpretation as provided for elsewhere in this chapter.

3.    General Standards. In all areas of special flood hazards, the following standards are required:

a.    In areas where a regulatory floodway has not been designated, no new construction, substantial improvements, or other development (including fill) shall be permitted within zone AE on the community’s FIRMs, unless it is demonstrated that the cumulative effect of the proposed development when combined with all other existing development, will not increase the water surface elevation of the base flood more than one foot at any point within the community.

b.    Anchoring.

i.    All new construction and substantial improvements shall be anchored to prevent flotation, collapse, or lateral movement of the structure;

ii.    All manufactured homes must likewise be anchored to prevent flotation, collapse, or lateral movement, and shall be installed using methods and practices that minimize flood damage. Anchoring methods may include, but are not limited to, use of over-the-top or frame ties to ground anchors, or as otherwise provided in FEMA’s “Manufactured Home Installation in Flood Hazard Areas” guidebook.

c.    Construction Materials and Methods.

i.    All new construction and substantial improvements shall be constructed with materials and utility equipment resistant to flood damage.

ii.    All new construction and substantial improvements shall be constructed using methods and practices that minimize flood damage.

iii.    Electrical, heating, ventilation, plumbing, and air-conditioning equipment and other service facilities shall be designed and/or otherwise elevated or located so as to prevent water from entering or accumulating within the components during conditions of flooding.

d.    Utilities.

i.    Utilities shall be located in the 100-year floodplain only when no other physically feasible location is available.

ii.    All new and replacement water supply systems, when permitted in the 100-year floodplain, shall be designed to minimize or eliminate infiltration of floodwaters into the system.

iii.    Installation of new sanitary sewage systems in the 100-year floodplain shall be prohibited unless a waiver is granted by the applicable department of public health. If a waiver is granted, the system shall be designed to minimize or eliminate infiltration of floodwaters into the system and discharge from the system into floodwaters.

iv.    Installation of replacement sanitary sewage systems within the 100-year floodplain shall be designed to minimize or eliminate infiltration of floodwaters into the systems and discharge from the systems into floodwaters.

v.    On-site waste disposal systems, when permitted in the 100-year floodplain, shall be located to avoid impairment to them or contamination from them during flooding.

vi.    Construction of sewage treatment facilities in the 100-year floodplain shall be prohibited.

vii.    Utility transmission lines transporting hazardous substances within the 100-year floodplain shall be buried at a minimum depth of four feet below the maximum depth of scour for the base flood as predicted by a professional civil engineer licensed in the state of Washington and shall achieve sufficient negative buoyancy so that any potential for flotation or upward migration is eliminated.

e.    Critical facilities shall not be constructed in the 100-year floodplain.

f.    Construction of livestock manure storage facilities and associated nonpoint source water pollution facilities shall not be constructed in the 100-year floodplain.

g.    Residential Construction.

i.    New construction and substantial improvement of any residential structure shall have the lowest floor, including basement, elevated one foot above base flood elevation;

ii.    Fully enclosed areas below the lowest floor that are subject to flooding are prohibited, or shall be designed to automatically equalize hydrostatic flood forces on exterior walls by allowing for the entry and exit of floodwaters. Designs for meeting this requirement must either be certified by a registered professional engineer or architect or must meet or exceed the following minimum criteria:

(A)    A minimum of two openings having a total net area of not less than one square inch for every square foot of enclosed area subject to flooding shall be provided;

(B)    The bottom of all openings shall be no higher than one foot above grade;

(C)    Openings may be equipped with screens, louvers, or other coverings or devices; provided, that they permit the automatic entry and exit of floodwaters.

h.    Nonresidential Construction. New construction and substantial improvement of any commercial, industrial or other nonresidential structure shall either have the lowest floor, including basement, elevated one foot above the level of the base flood elevation; or together with attendant utility and sanitary facilities shall:

i.    Be floodproofed so that below one foot above the base flood level the structure is watertight with walls substantially impermeable to the passage of water.

ii.    Have structural components capable of resisting hydrostatic and hydrodynamic loads and effects of buoyancy.

iii.    Be certified by a registered professional engineer or architect that the design and methods of construction are in accordance with accepted standards of practice for meeting provisions of this subsection based on their development and/or review of the structural design, specifications and plans. Such certifications shall be provided to the official as set forth elsewhere in this section.

iv.    Nonresidential structures that are elevated, not floodproofed, must meet the same standards for space below the lowest floor as described in subsection (A)(3)(g) of this section.

v.    Applicants floodproofing nonresidential buildings shall be notified that flood insurance premiums will be based on rates that are one foot below the floodproofed level.

i.    Manufactured Homes. All manufactured homes to be placed or substantially improved within Zones A, AE, and X shall be elevated on a permanent foundation such that the lowest floor of the manufactured home is one foot above the base flood elevation and be securely anchored to an adequately anchored foundation system in accordance with the provisions of subsection (A)(3)(b) of this section.

j.    Subdivision Proposals.

i.    All subdivision proposals shall be consistent with the need to minimize flood damage.

ii.    Subdivisions, short subdivisions, and binding site plans shall follow these requirements:

(A)    New building lots shall contain 5,000 square feet or more of buildable land outside the 100-year floodplain and building setback lines shall be shown on the face of the plat to restrict permanent structures to this 5,000-square-foot or greater area;

(B)    All public utilities and facilities such as sewer, gas, electrical and water systems shall be located and constructed consistent with subsection (A)(3)(d) of this section;

(C)    Adequate drainage shall be provided to reduce exposure to flood damage;

(D)    Where base flood elevation data has not been provided or is not available from another authoritative source, it shall be generated for subdivision proposals and other proposed developments which contain at least 50 lots or five acres, whichever is less;

(E)    Base flood data and flood hazard notes shall be shown on the face of the recorded plat, including, but not limited to, the base flood elevation, required flood protection elevations, and the boundaries of the 100-year floodplain; and

(F)    The following note shall appear on the face of the recorded plat for all affected lots:

N O T I C E

    Lots and structures located within flood hazard areas may be inaccessible by emergency vehicles during flood events. Residents and property owners should take appropriate advance precautions.

k.    Floodways. Located within areas of special flood hazard are areas designated as “floodways.” Since the floodway is an extremely hazardous area due to the velocity of floodwaters which carry debris, potential projectiles and erosion potential, the following provisions apply.

i.    Prohibit encroachments, including fill, new construction, substantial improvements and other development unless certification by a registered professional engineer or architect is provided demonstrating that encroachments shall not result in any increase in flood levels during the occurrence of the base flood discharge.

ii.    If this subsection is satisfied, all new construction and substantial improvements shall comply with all applicable flood hazard reduction provisions of this section.

iii.    Construction or reconstruction of residential structures is prohibited within designated floodways, except for (A) repairs, reconstruction, or improvements to a structure which do not increase the ground floor area; and (B) repairs, reconstruction or improvements to a structure, the cost of which does not exceed 50 percent of the market value of the structure either (1) before the repair, reconstruction, or improvement is started, or (2) if the structure has been damaged, and is being restored, before the damage occurred. Any project for improvement of a structure to correct existing violations of state or local health, sanitary, or safety toward specifications which have been identified by the local code official and which are the minimum necessary to assure safe living conditions or to structures identified as historic places shall not be included in the 50 percent.

l.    Encroachments. The cumulative effect of any proposed development, when combined with all other existing and anticipated development, shall not increase the water surface elevation of the base flood more than one foot at any point.

m.    Recreational Vehicles. Recreational vehicles placed on sites will be required to either:

i.    Be on the site for fewer than 180 consecutive days; and

ii.    Be fully licensed and ready for highway use, on its wheels or jacking system, be attached to the site only by quick disconnect type utilities and security devices and have no permanently attached additions; or

iii.    Meet the requirement of subsection (A)(3)(i) of this section and the elevation and anchoring requirements for manufactured homes. (Ord. 1946 § 3, 2005).

Article XIV. Geologically Hazardous Areas

Designation, Classification, and Mapping

14.04.800 Designation of geologically hazardous areas.

Geologically hazardous areas include areas susceptible to erosion, sliding, earthquake, or other geological events. They pose a threat to the health and safety of citizens when incompatible development is sited in areas of significant hazard. Such incompatible development may not only place itself at risk, but also may increase the hazard to surrounding development and use. Areas susceptible to one or more of the following types of hazards shall be designated as a geologically hazardous area:

A.    Erosion hazard;

B.    Landslide hazard;

C.    Seismic hazard; and

D.    Other geological events including mass wasting, debris flows, rock falls, and differential settlement. (Ord. 1946 § 3, 2005).

14.04.810 Designation of specific hazard areas.

A.    Erosion Hazard Areas. Erosion hazard areas are those areas identified by the U.S. Department of Agriculture’s Natural Resources Conservation Service as having a “moderate to severe,” “severe,” or “very severe” rill and inter-rill erosion hazard19 and/or those areas containing soils which, according to the USDA Soil Conservation Service Soil Classification System, may experience severe to very severe erosion hazard. Erosion hazard areas are also those areas impacted by shore land and/or stream bank erosion and those areas within a river’s channel migration zone.

B.    Landslide Hazard Areas. Landslide hazard areas are areas of historic failure or potentially subject to landslides based on a combination of geologic, topographic, and hydrologic factors. They include areas susceptible because of any combination of bedrock, soil, slope (gradient), slope aspect, structure, hydrology, or other factors. Example of these may include, but are not limited to the following:

1.    Areas of historic failures, such as:20

a.    Those areas delineated by the U.S. Department of Agriculture’s Natural Resources Conservation Service as having a “severe” limitation for building site development;

b.    Those areas mapped by the Washington State Department of Ecology (Coastal Zone Atlas) or the Washington State Department of Natural Resources (slope stability mapping) as unstable (U or class 3), unstable old slides (UOS or class 4), or unstable recent slides (URS or class 5); or

c.    Areas designated as quaternary slumps, earthflows, mudflows, lahars, or landslides on maps published by the U.S. Geological Survey or Washington State Department of Natural Resources;

2.    Areas with all three of the following characteristics:21

a.    Slopes steeper than 15 percent;

b.    Hillsides intersecting geologic contacts with a relatively permeable sediment overlying a relatively impermeable sediment or bedrock; and

c.    Springs or groundwater seepage.

3.    Areas that have shown movement during the Holocene epoch (from 10,000 years ago to the present) or that are underlain or covered by mass wastage debris of that epoch;22

4.    Slopes that are parallel or subparallel to planes of weakness (such as bedding planes, joint systems, and fault planes) in subsurface materials;23

5.    Slopes having gradients steeper than 80 percent subject to rock fall during seismic shaking;24

6.    Areas potentially unstable because of rapid stream incision, stream bank erosion, and undercutting by wave action;25

7.    Areas that show evidence of, or are at risk from snow avalanches;26

8.    Areas located in a canyon or on an active alluvial fan, presently or potentially subject to inundation by debris flows or catastrophic flooding;27 and

9.    Any area with a slope of 40 percent or steeper and with a vertical relief of 10 or more feet except areas composed of consolidated rock. A slope is delineated by establishing its toe and top and is measured by averaging the inclination over at least 10 feet of vertical relief.28

C.    Seismic Hazard Areas. Seismic hazard areas are areas subject to severe risk of damage as a result of earthquake induced ground shaking, slope failure, settlement, soil liquefaction, lateral spreading, or surface faulting. One indicator of potential for future earthquake damage is a record of earthquake damage in the past. Ground shaking is the primary cause of earthquake damage in Washington. The strength of ground shaking is primarily affected by:29

1.    The magnitude of an earthquake;

2.    The distance from the source of an earthquake;

3.    The type of thickness of geologic materials at the surface; and

4.    The type of subsurface geologic structure.

    Settlement and soil liquefaction conditions occur in areas underlain by cohesionless, loose, or soft-saturated soils of low density, typically in association with a shallow groundwater table.

D.    Other Hazard Areas. Geologically hazardous areas shall also include areas determined by the director to be susceptible to other geological events including mass wasting, debris flows, rock falls, and differential settlement. (Ord. 1946 § 3, 2005).

14.04.820 Classification of geologically hazardous areas.

All geologic hazard areas should be classified according to the following categories for each geologic hazard type.

Classification

Documentation and Data Sources

Known or Suspected Risk

Documentation or projection of the hazard by a qualified professional exists.

Risk Unknown

Documentation or projection of the lack of hazard by a qualified professional exists, or data are not available to determine the presence or absence of a geologic hazard.

(Ord. 1946 § 3, 2005).

14.04.830 Mapping of geologically hazardous areas.

A.    The approximate location and extent of geologically hazardous areas are shown on the adopted critical areas maps. The adopted critical areas maps include:

1.    U.S. Geological Survey landslide and seismic hazard maps;

2.    Washington State Department of Natural Resources seismic hazard maps for Western Washington;

3.    Washington State Department of Natural Resources slope stability maps;

4.    Federal Emergency Management Administration flood insurance maps; and

5.    Locally adopted maps.

B.    These maps are to be used as a guide for the city, project applicants and/or property owners and may be continuously updated as new critical areas are identified. They are a reference and do not provide a final critical areas designation. (Ord. 1946 § 3, 2005).

Allowed Activities

14.04.840 Activities allowed in geologically hazardous areas.

The following activities are allowed in geologically hazardous areas pursuant to BMC 14.04.150, Allowed activities, and do not require submission of a critical areas report:

A.    Erosion and Landslide Hazard Areas. Except as otherwise provided for in this chapter, only those activities approved and permitted consistent with an approved critical areas report in accordance with this chapter shall be allowed in erosion or landslide hazard areas.

B.    Seismic Hazard Areas. The following activities are allowed within seismic hazard areas:

1.    Construction of new buildings with less than 2,500 square feet of floor area or roof area, whichever is greater, and which are not residential structures or used as places of employment or public assembly;

2.    Additions to existing single-story residences that are 250 square feet or less; and

3.    Installation of fences.

C.    Other Hazard Areas. The director may allow the following activities within other geologically hazardous areas, if the activity will not increase the risk of the hazard:

1.    Construction of new buildings with less than 2,500 square feet of floor area or roof area, whichever is greater, and which are not residential structures or used as places of employment or public assembly;

2.    Additions to existing residences that are 250 square feet or less; and

3.    Installation of fences. (Ord. 1946 § 3, 2005).

Critical Areas Report Requirements

14.04.850 Critical areas report – Additional requirements for geologically hazardous areas.

A.    Preparation by a Qualified Professional. A critical areas report for a geologically hazardous area shall be prepared by an engineer or geologist, licensed in the state of Washington, with experience analyzing geologic, hydrologic, and groundwater flow systems, and who has experience preparing reports for the relevant type of hazard.

B.    Area Addressed in Critical Areas Report. The following areas shall be addressed in a critical areas report for geologically hazardous areas:

1.    The project area of the proposed activity; and

2.    All geologically hazardous areas within 200 feet of the project area or that have potential to be affected by the proposal;

C.    Geological Hazards Assessment. A critical areas report for a geologically hazardous area shall contain an assessment of geological hazards including the following site- and proposal-related information at a minimum:

1.    Site and Construction Plans. The report shall include a copy of the site plans for the proposal showing:

a.    The type and extent of geologic hazard areas, any other critical areas, and buffers on, adjacent to, within 200 feet of, or that are likely to impact the proposal;

b.    Proposed development, including the location of existing and proposed structures, fill, storage of materials, and drainage facilities, with dimensions indicating distances to the floodplain, if available;

c.    The topography, in two-foot contours, of the project area and all hazard areas addressed in the report; and

d.    Clearing limits;

2.    Assessment of Geological Characteristics. The report shall include an assessment of the geologic characteristics of the soils, sediments, and/or rock of the project area and potentially affected adjacent properties, and a review of the site history regarding landslides, erosion, and prior grading. Soils analysis shall be accomplished in accordance with accepted classification systems in use in the region. The assessment shall include, but not be limited to:

a.    A description of the surface and subsurface geology, hydrology, soils, and vegetation found in the project area and in all hazard areas addressed in the report;

b.    A detailed overview of the field investigations, published data, and references; data and conclusions from past assessments of the site; and site specific measurements, test, investigations, or studies that support the identification of geologically hazardous areas; and

c.    A description of the vulnerability of the site to seismic and other geologic events;

3.    Analysis of Proposal. The report shall contain a hazards analysis including a detailed description of the project, its relationship to the geologic hazard(s), and its potential impact upon the hazard area, the subject property, and affected adjacent properties; and

4.    Minimum Buffer and Building Setback. The report shall make a recommendation for the minimum no-disturbance buffer and minimum building setback from any geologic hazard based upon the geotechnical analysis.

D.    Incorporation of Previous Study. Where a valid critical areas report has been prepared within the last five years for a specific site, and where the proposed land use activity and surrounding site conditions are unchanged, said report may be incorporated into the required critical areas report. The applicant shall submit a hazards assessment detailing any changed environmental conditions associated with the site.

E.    Mitigation of Long-Term Impacts. When hazard mitigation is required, the mitigation plan shall specifically address how the activity maintains or reduces the pre-existing level of risk to the site and adjacent properties on a long-term basis (equal to or exceeding the projected lifespan of the activity or occupation). Proposed mitigation techniques shall be considered to provide long-term hazard reduction only if they do not require regular maintenance or other actions to maintain their function. Mitigation may also be required to avoid any increase in risk above the pre-existing conditions following abandonment of the activity. (Ord. 1946 § 3, 2005).

14.04.860 Critical areas report – Additional technical information requirements for specific hazards.

In addition to the general critical areas report requirements of BMC 14.04.190 and 14.04.850, critical areas reports for geologically hazardous areas must meet the requirements of this section. Critical areas reports for two or more types of critical areas must meet the report requirements for each relevant type of critical area.

A.    Erosion and Landslide Hazard Areas. In addition to the basic critical areas report requirements, the technical information for an erosion hazard or landslide hazard area shall include the following information at a minimum:

1.    Site Plan. The critical areas report shall include a copy of the site plan for the proposal showing:

a.    The height of slope, slope gradient, and cross-section of the project area;

b.    The location of springs, seeps, or other surface expressions of groundwater on or within 200 feet of the project area or that have potential to be affected by the proposal;30 and

c.    The location and description of surface water runoff features;

2.    Hazards Analysis. The hazards analysis component of the critical areas report shall specifically include:

a.    A description of the extent and type of vegetative cover;

b.    A description of subsurface conditions based on data from site-specific explorations;

c.    Descriptions of surface and groundwater conditions, public and private sewage disposal systems, fills and excavations, and all structural improvements;

d.    An estimate of slope stability and the effect construction and placement of structures will have on the slope over the estimated life of the structure;

e.    An estimate of the bluff retreat rate that recognizes and reflects potential catastrophic events such as seismic activity or a 100-year storm event;

f.    Consideration of the run-out hazard of landslide debris and/or the impacts of landslide run-out on down slope properties and critical areas;

g.    Consideration of the effects of erosion on down slope properties and other critical areas;

h.    A study of slope stability including an analysis of proposed cuts, fills, and other site grading;

i.    Recommendations for building siting limitations; and

j.    An analysis of proposed surface and subsurface drainage, and the vulnerability of the site to erosion;

3.    Geotechnical Engineering Report. The technical information for a project within a landslide hazard area shall include a geotechnical engineering report prepared by a licensed engineer that presents engineering recommendations for the following:

a.    Parameters for design of site improvements including appropriate foundations and retaining structures. These should include allowable load and resistance capacities for bearing and lateral loads, installation considerations, and estimates of settlement performance;

b.    Recommendations for drainage and subdrainage improvements;

c.    Earthwork recommendations including clearing and site preparation criteria, fill placement and compaction criteria, temporary and permanent slope inclinations and protection, and temporary excavation support, if necessary; and

d.    Mitigation of adverse site conditions including slope stabilization measures and seismically unstable soils, if appropriate;

4.    Erosion and Sediment Control Plan. For any development proposal on a site containing an erosion hazard area, an erosion and sediment control plan shall be required. The erosion and sediment control plan shall be prepared in compliance with requirements set forth in the city of Bothell’s adopted storm water and water quality standards;

5.    Drainage Plan. The technical information shall include a drainage plan for the collection, transport, treatment, discharge, and/or recycle of water prepared in accordance with the city of Bothell adopted surface water standards. The drainage plan should consider on-site septic system disposal volumes where the additional volume will affect the erosion or landslide hazard area;

6.    Mitigation Plans. Hazard and environmental mitigation plans for erosion and landslide hazard areas shall include the location and methods of drainage, surface water management, locations and methods of erosion control, a vegetation management and/or replanting plan, and/or other means for maintaining long-term soil stability; and

7.    Monitoring Surface Waters. If the director determines that there is a significant risk of damage to downstream receiving waters due to potential erosion from the site, based on the size of the project, the proximity to the receiving waters, or the sensitivity of the receiving waters, the technical information shall include a plan to monitor the surface water discharge from the site. The monitoring plan shall include a recommended schedule for submitting monitoring reports to the city.

B.    Seismic Hazard Areas. In addition to the basic report requirements, a critical areas report for a seismic hazard area shall also meet the following requirements:

1.    The site map shall show all known and mapped faults within 200 feet of the project area or that have potential to be affected by the proposal.

2.    The hazards analysis shall include a complete discussion of the potential impacts of seismic activity on the site (for example, forces generated and fault displacement).

3.    A geotechnical engineering report shall evaluate the physical properties of the subsurface soils, especially the thickness of unconsolidated deposits and their liquefaction potential. If it is determined that the site is subject to liquefaction, mitigation measures appropriate to the scale of the development shall be recommended and implemented.

C.    Other Geologically Hazardous Areas. In addition to the basic requirements, the director may require additional technical information to be submitted when determined to be necessary to the review the proposed activity and the subject hazard. Additional technical information that may be required, includes, but is not limited to:

1.    Site Plan. The site plan shall show all hazard areas located within 200 feet of the project area or that have potential to be affected by the proposal; and

2.    Hazards Analysis. The hazards analysis shall include a complete discussion of the potential impacts of the hazard on the project area and of the proposal on the hazard. (Ord. 1946 § 3, 2005).

Performance Standards

14.04.870 Performance standards – General requirements.

A.    Alterations of geologically hazardous areas or associated buffers may only occur for activities that:

1.    Will not increase the threat of the geological hazard to adjacent properties beyond pre-development conditions;

2.    Will not adversely impact other critical areas;

3.    Are designed so that the hazard to the project is eliminated or mitigated to a level equal to or less than pre-development conditions; and

4.    Are certified as safe as designed and under anticipated conditions by a qualified engineer or geologist, licensed in the state of Washington.

B.    Critical Facilities Prohibited. Critical facilities shall not be sited within geologically hazardous areas unless there is no other practical alternative. (Ord. 1946 § 3, 2005).

14.04.880 Performance standards – Specific hazards.

A.    Erosion and Landslide Hazard Areas. Activities on sites containing erosion or landslide hazards shall meet the standards of BMC 14.04.870, Performance standards – General requirements, and the specific following requirements:

1.    Buffer Requirement. A buffer shall be established from all edges of landslide hazard areas. The size of the buffer shall be determined by the director to eliminate or minimize the risk of property damage, death, or injury resulting from landslides caused in whole or part by the development, based upon review of and concurrence with a critical areas report prepared by a qualified professional.

a.    Minimum Buffer. The minimum buffer shall be equal to the height of the slope or 50 feet, whichever is greater.

b.    Buffer Reduction. The buffer may be reduced to a minimum of 10 feet when a qualified professional demonstrates to the director’s satisfaction that the reduction will adequately protect the proposed development, adjacent developments, and uses and the subject critical area.

c.    Increased Buffer. The buffer may be increased where the director determines a larger buffer is necessary to prevent risk of damage to proposed and existing development;

2.    Alterations. Alterations of an erosion or landslide hazard area and/or buffer may only occur for activities for which a hazards analysis is submitted and certifies that:

a.    The development will not increase surface water discharge or sedimentation to adjacent properties beyond pre-development conditions;

b.    The development will not decrease slope stability on adjacent properties; and

c.    Such alterations will not adversely impact other critical areas;

3.    Design Standards. Development within an erosion or landslide hazard area and/or buffer shall be designed to meet the following basic requirements unless it can be demonstrated that an alternative design that deviates from one or more of these standards provides greater long-term slope stability while meeting all other provisions of this chapter. The requirement for long-term slope stability shall exclude designs that require regular and periodic maintenance to maintain their level of function. The basic development design standards are:

a.    The proposed development shall not decrease the factor of safety for landslide occurrences below the limits of 1.5 for static conditions and 1.2 for dynamic conditions. Analysis of dynamic conditions shall be based on a minimum horizontal acceleration as established by the current version of the International Building Code;

b.    Structures and improvements shall minimize alterations to the natural contour of the slope, and foundations shall be tiered where possible to conform to existing topography;

c.    Structures and improvements shall be located to preserve the most critical portion of the site and its natural landforms and vegetation;

d.    The proposed development shall not result in greater risk or a need for increased buffers on neighboring properties;

e.    The use of retaining walls that allow the maintenance of existing natural slope area is preferred over graded artificial slopes; and

f.    Development shall be designed to minimize impervious lot coverage;

4.    Vegetation Retention. Unless otherwise provided or as part of an approved alteration, removal of vegetation from an erosion or landslide hazard area or related buffer shall be prohibited;

5.    Seasonal Restriction. Clearing shall be allowed only from May 1st to October 1st of each year; provided, that the city may extend or shorten the dry season on a case-by-case basis depending on actual weather conditions, except that timber harvest, not including brush clearing or stump removal, may be allowed pursuant to an approved forest practice permit issued by the city or the Washington State Department of Natural Resources;

6.    Utility Lines and Pipes. Utility lines and pipes shall be permitted in erosion and landslide hazard areas only when the applicant demonstrates that no other practical alternative is available. The line or pipe shall be located above ground and properly anchored and/or designed so that it will continue to function in the event of an underlying slide. Storm water conveyance shall be allowed only through a high-density polyethylene pipe with fuse-welded joints, or similar product that is technically equal or superior;

7.    Point Discharges. Point discharges from surface water facilities and roof drains onto or upstream from an erosion or landslide hazard area shall be prohibited except as follows:

a.    Conveyed via continuous storm pipe downslope to a point where there are no erosion hazards areas downstream from the discharge;

b.    Discharged at flow durations matching pre-developed conditions, with adequate energy dissipation, into existing channels that previously conveyed storm water runoff in the pre-developed state; or

c.    Dispersed discharge upslope of the steep slope onto a low-gradient undisturbed buffer demonstrated to be adequate to infiltrate all surface and storm water runoff, and where it can be demonstrated that such discharge will not increase the saturation of the slope;

8.    Subdivisions. The division of land in landslide hazard areas and associated buffers is subject to the following:

a.    Land that is located wholly within a landslide hazard area or its buffer may not be subdivided. Land that is located partially within a landslide hazard area or its buffer may be divided; provided, that each resulting lot has sufficient buildable area outside of, and will not affect, the landslide hazard or its buffer;

b.    Access roads and utilities may be permitted within the landslide hazard area and associated buffers if the city determines that no other feasible alternative exists; and

9.    Prohibited Development. On-site sewage disposal systems, including drain fields, shall be prohibited within erosion and landslide hazard areas and related buffers.

B.    Seismic Hazard Areas. Activities proposed to be located in seismic hazard areas shall meet the standards of BMC 14.04.870, Performance standards – General requirements.

C.    Other Hazard Areas. Activities on sites containing or adjacent to other geologically hazardous areas, shall meet the standards of BMC 14.04.870, Performance standards – General requirements. (Ord. 1946 § 3, 2005).

Article XV. Fish and Wildlife Habitat Areas

Designation and Mapping

14.04.900 Designation of fish and wildlife habitat conservation areas.

A.    Fish and wildlife habitat conservation areas include:

1.    Areas with Which State or Federally Designated Endangered, Threatened, and Sensitive Species Have a Primary Association.31

a.    Federally designated endangered and threatened species are those fish and wildlife species identified by the U.S. Fish and Wildlife Service and the National Marine Fisheries Service that are in danger of extinction or threatened to become endangered. The U.S. Fish and Wildlife Service and the National Marine Fisheries Service should be consulted for current listing status.

b.    State designated endangered, threatened, and sensitive species are those fish and wildlife species native to the state of Washington identified by the Washington State Department of Fish and Wildlife, that are in danger of extinction, threatened to become endangered, vulnerable, or declining and are likely to become endangered or threatened in a significant portion of their range within the state without cooperative management or removal of threats. State designated endangered, threatened, and sensitive species are periodically recorded in WAC 232-12-014 (state endangered species) and WAC 232-12-011 (state threatened and sensitive species). The state Department of Fish and Wildlife maintains the most current listing and should be consulted for current listing status.

    A combined list of federally and state identified species is included in Appendix D to the Critical Areas Assistance Handbook: Protecting Critical Areas Within the Framework of the Growth Management Act, Washington State Department of Community, Trade and Economic Development, November 2003.

2.    State Priority Habitats and Areas Associated with State Priority Species.32 Priority habitats and species are considered to be priorities for conservation and management. Priority species require protective measures for their perpetuation due to their population status, sensitivity to habitat alteration, and/or recreational, commercial, or tribal importance. Priority habitats are those habitat types or elements with unique or significant value to a diverse assemblage of species. A priority habitat may consist of a unique vegetation type or dominant plant species, a described successional stage, or a specific structural element. Priority habitats and species are identified by the State Department of Fish and Wildlife, or herons.

    A state list of priority habitats is included in Appendix E to the Critical Areas Assistance Handbook: Protecting Critical Areas Within the Framework of the Growth Management Act, Washington State Department of Community, Trade and Economic Development, November 2003.

3.    Habitats and Species of Local Importance.33 Habitats and species of local importance are those identified by the city, including but not limited to those habitats and species that, due to their population status or sensitivity to habitat manipulation, warrant protection. Habitats may include a seasonal range or habitat element with which a species has a primary association, and which, if altered, may reduce the likelihood that the species will maintain and reproduce over the long term.

a.    Designation Process. The city shall accept and consider nominations for habitat areas and species to be designated as locally important on an annual basis. Nominations shall be processed by the city as a Type IVA permit, in accordance with Chapter 11.04 BMC.

i.    Habitats and species to be designated shall exhibit the following characteristics:

(A)    Local populations of native species are in danger of extirpation based on existing trends:

(1)    Local populations of native species that are likely to become endangered; or

(2)    Local populations of native species that are vulnerable or declining;34

(B)    The species or habitat has recreation, commercial, game, tribal, or other special value;

(C)    Long-term persistence of a species is dependent on the protection, maintenance, and/or restoration of the nominated habitat;

(D)    Protection by other county, state, or federal policies, laws, regulations, or non-regulatory tools is not adequate to prevent degradation of the species or habitat in the city; and

(E)    Without protection, there is a likelihood that the species or habitat will be diminished over the long term.

    ii. Areas nominated to protect a particular habitat or species must represent either high-quality native habitat or habitat that has a high potential to recover to a suitable condition and which is of limited availability, highly vulnerable to alteration, or provides landscape connectivity which contributes to the integrity of the surrounding landscape.

    iii. Habitats and species may be nominated for designation by any person.

    iv. The nomination should indicate whether specific habitat features are to be protected (for example, nest sites, breeding areas, and nurseries), or whether the habitat or ecosystem is being nominated in its entirety.

    v. The nomination may include management strategies for the species or habitats. Management strategies must be supported by the best available science, and where restoration of habitat is proposed, a specific plan for restoration must be provided prior to nomination.

    vi. The director shall determine whether the nomination proposal is complete, and if complete, shall evaluate it according to the characteristics enumerated in subsection (A)(3)(a)(i) of this section and make a recommendation to the planning commission, or shorelines board if the habitat in question is located within a designated shorelines area, based on those findings.

    vii. The planning commission/shorelines board shall hold a public hearing for proposals found to be complete in accordance with BMC Titles 11 and 12 and make a recommendation to the city council based on the characteristics enumerated in subsection (A)(3)(a)(i) of this section.

    viii. Following the recommendation of the planning commission/shorelines board, the city council shall designate a habitat or species of local importance.

    ix. Approved nominations will be subject to the provisions of this chapter.

4.    Naturally Occurring Ponds Under 20 Acres.35 Naturally occurring ponds are those ponds under 20 acres and their submerged aquatic beds that provide fish or wildlife habitat, including those artificial ponds intentionally created from dry areas in order to mitigate impacts to ponds. Naturally occurring ponds do not include ponds deliberately designed and created from dry sites, such as canals, detention facilities, wastewater treatment facilities, farm ponds, temporary construction ponds, and landscape amenities, unless such artificial ponds were intentionally created for mitigation.36

5.    Waters of the State.37 Waters of the state include lakes, rivers, ponds, streams, inland waters, underground waters, and all other surface waters and watercourses within the jurisdiction of the state of Washington, as classified in WAC 222-16-030.

6.    Lakes, Ponds, Streams, and Rivers Planted with Game Fish by a Governmental or Tribal Entity.38

7.    State Natural Area Preserves and Natural Resource Conservation Areas.39 Natural area preserves and natural resource conservation areas are defined, established, and managed by the Washington State Department of Natural Resources.

B.    All areas within the city meeting one or more of these criteria, regardless of any formal identification, are hereby designated critical areas and are subject to the provisions of this chapter except as otherwise provided herein.

1.    Special Regulations Applicable to Horse Creek Daylighting North of SR 522 Within the Downtown Subarea. Any proposed conversion of currently piped portions of Horse Creek north of SR 522 within the Downtown Subarea to an open channel – a process known as “daylighting” – and any proposed development adjacent to such an open channel or to the existing open channel of Horse Creek north of NE 188th Street, shall be subject to BMC 12.64.302(C) in lieu of any conflicting citywide fish and wildlife habitat regulations in this title.

C.    Mapping. The approximate location and extent of habitat conservation areas are shown on the critical areas maps adopted by the city, as most recently updated. The following critical areas maps are hereby adopted:

1.    Washington State Department of Fish and Wildlife Priority Habitat and Species maps;

2.    Washington State Department of Natural Resources Natural Heritage Program mapping data;

3.    Anadromous and resident salmonid distribution maps contained in the Habitat Limiting Factors reports published by the Washington Conservation Commission;

4.    Washington State Department of Natural Resources State Natural Area Preserves and Natural Resource Conservation Area maps; and

5.    City official habitat maps.

These maps are to be used as a guide for the city, project applicants, and/or property owners and should be continuously updated as new critical areas are identified. They are a reference and do not provide a final critical areas designation. (Ord. 2102 § 2 (Exh. B), 2012; Ord. 1946 § 3, 2005).

Additional Report Requirements

14.04.910 Critical areas report – Additional requirements for habitat conservation areas.

In addition to the general critical areas report requirements of BMC 14.04.190, critical areas reports for habitat conservation areas must meet the requirements of this section. Critical areas reports for two or more types of critical areas must meet the report requirements for each relevant type of critical area.

A.    Preparation by a Qualified Professional. A critical areas report for a habitat conservation area shall be prepared by a qualified professional who is a biologist with experience preparing reports for the relevant type of habitat.

B.    Areas Addressed in Critical Areas Report. The following areas shall be addressed in a critical areas report for habitat conservation areas:40

1.    The project area of the proposed activity;

2.    All habitat conservation areas and recommended buffers within 300 feet of the project area; and

3.    All shoreline areas, floodplains, other critical areas, and related buffers within 300 feet of the project area.

C.    Habitat Assessment. A habitat assessment is an investigation of the project area to evaluate the potential presence or absence of designated critical fish or wildlife species or habitat. A critical areas report for a habitat conservation area shall contain an assessment of habitats including the following site- and proposal-related information at a minimum:

1.    Detailed description of vegetation on and adjacent to the project area and its associated buffer;

2.    Identification of any species of local importance, priority species, or endangered, threatened, sensitive, or candidate species that have a primary association with habitat on or adjacent to the project area, and assessment of potential project impacts to the use of the site by the species;

3.    A discussion of any federal, state, or local special management recommendations, including Washington State Department of Fish and Wildlife habitat management recommendations, that have been developed for species or habitats located on or adjacent to the project area;

4.    A detailed discussion of the direct and indirect potential impacts on habitat by the project, including potential impacts to water quality;

5.    A discussion of measures, including avoidance, minimization, and mitigation, proposed to preserve existing habitats and restore any habitat that was degraded prior to the current proposed land use activity and to be conducted in accordance with BMC 14.04.210, Mitigation sequencing; and

6.    A discussion of ongoing management practices that will protect habitat after the project site has been developed, including proposed monitoring and maintenance programs.

D.    Additional Information May Be Required. When appropriate due to the type of habitat or species present or the project area conditions, the director may also require the habitat management plan to include:

1.    An evaluation by an independent qualified professional regarding the applicant’s analysis and the effectiveness of any proposed mitigating measures or programs, to include any recommendations as appropriate;

2.    A request for consultation with the Washington State Department of Fish and Wildlife or the local Native American Indian Tribe or other appropriate agency; and

3.    Detailed surface and subsurface hydrologic features both on and adjacent to the site. (Ord. 1946 § 3, 2005).

Performance Standards

14.04.920 Performance standards – General requirements.

A.    Alterations. A habitat conservation area may be altered only if the proposed alteration of the habitat or the mitigation proposed does not degrade the quantitative and qualitative functions and values of the habitat. All new structures and land alterations shall be in accordance with this chapter.

B.    Non-Indigenous Species. No plant, wildlife, or fish species not indigenous to the region shall be introduced into a habitat conservation area unless authorized by a state or federal permit or approval. Domesticated animals may be kept, subject to the provisions of this chapter.

C.    Mitigation and Contiguous Corridors.41 Mitigation sites shall be located to preserve or achieve contiguous wildlife habitat corridors in accordance with a mitigation plan that is part of an approved critical areas report to minimize the isolating effects of development on habitat areas, so long as mitigation of aquatic habitat is located within the same aquatic ecosystem as the area disturbed.

D.    Approvals of Activities. The director shall condition approvals of activities allowed within or adjacent to a habitat conservation area or its buffers, as necessary to minimize or mitigate any potential adverse impacts. Conditions shall be based on the best available science and may include, but are not limited to, the following:

1.    Establishment of buffer zones;

2.    Preservation of critically important vegetation and/or habitat features such as snags and downed wood;

3.    Limitation of access to the habitat area, including fencing to deter unauthorized access;

4.    Seasonal restriction of construction activities;

5.    Establishment of a duration and timetable for periodic review of mitigation activities;

6.    Requirement of a performance bond, when necessary, to ensure completion and success of proposed mitigation;

7.    Application of herbicides and pesticides.

E.    Mitigation and Equivalent or Greater Biological Functions. Mitigation of alterations to habitat conservation areas shall achieve equivalent or greater biologic and hydrologic functions and shall include mitigation for adverse impacts upstream or downstream of the development proposal site. Mitigation shall address each function affected by the alteration to achieve functional equivalency or improvement on a per function basis.

F.    Approvals and the Best Available Science. Any approval of alterations or impacts to a habitat conservation area shall be supported by the best available science.

G.    Buffers.

1.    Establishment of Buffers.42 The director shall require the establishment of buffer areas for activities adjacent to habitat conservation areas when needed to protect habitat conservation areas. Buffers shall consist of an undisturbed area of native vegetation or areas identified for restoration established to protect the integrity, functions, and values of the affected habitat. Habitat conservation areas and their buffers shall be preserved in perpetuity through the use of critical areas tracts in accordance with BMC 14.04.300.

2.    Seasonal Restrictions. When a species is more susceptible to adverse impacts during specific periods of the year, seasonal restrictions may apply. Larger buffers may be required and activities may be further restricted during the specified season.

3.    Habitat Buffer Averaging. The director may allow the recommended habitat area buffer width to be reduced in accordance with a critical areas report, the best available science, and the management recommendations issued by the Washington State Department of Fish and Wildlife, only if:

a.    It will not reduce stream or habitat functions;

b.    It will not adversely affect anadromous fish habitat;

c.    It will provide additional natural resource protection, such as buffer enhancement;

d.    The total area contained in the buffer area after averaging is no less than that which would be contained within the standard buffer; and

e.    The buffer area width is not reduced by more than 25 percent in any location.43

H.    Signs and Fencing of Habitat Conservation Areas.

1.    Temporary Markers. The outer perimeter of the habitat conservation area or buffer and the limits of those areas to be disturbed pursuant to an approved permit or authorization shall be marked in the field in such a way as to ensure that no unauthorized intrusion will occur and verified by the director prior to the commencement of permitted activities. This temporary marking shall be maintained throughout construction and shall not be removed until permanent signs, if required, are in place.

2.    Permanent Signs. As a condition of any permit or authorization issued pursuant to this chapter, the director may require that the applicant to install permanent signs along the boundary of a habitat conservation area or buffer.

a.    Permanent signs shall be made of a metal face and attached to a metal post or another material of equal durability. Signs must be posted at an interval of one per lot or every 50 feet, whichever is less and must be maintained by the property owner in perpetuity. The sign shall be worded as follows or with alternative language approved by the director:

Habitat Conservation Area

Do Not Disturb

Contact City of Bothell

Regarding Uses and Restriction

b.    The provisions of subsection (H)(1)(a) of this section may be modified by the director as necessary to assure protection of sensitive features or wildlife.

3.    Fencing.

a.    The director shall determine if fencing is necessary to protect the functions and values of the critical area. If found to be necessary, the director shall condition any permit or authorization issued pursuant to this chapter to require the applicant to install a permanent fence at the edge of the habitat conservation area or buffer, when fencing will prevent future impacts to the habitat conservation area.

b.    The applicant shall be required to install a permanent fence around the habitat conservation area or buffer when domestic grazing animals are present or may be introduced on site.

c.    Fencing installed as part of a proposed activity or as required in this subsection shall be design so as to not interfere with species migration, including fish runs, and shall be constructed in a manner that minimizes habitat impacts.

I.    Subdivisions. The subdivision and short subdivision of land in fish and wildlife habitat conservation areas and associated buffers is subject to the following:

1.    Land that is located wholly within a habitat conservation area or its buffer may not be subdivided.

2.    Land that is located partially within a habitat conservation area or its buffer may be divided; provided, that the developable portion of each new lot and its access is located outside of the habitat conservation area or its buffer and meets the minimum lot size requirements of BMC Title 12.

3.    Access roads and utilities serving the proposed may be permitted within the habitat conservation area and associated buffers only if the city determines that no other feasible alternative exists and when consistent with this chapter. (Ord. 1946 § 3, 2005).

14.04.930 Performance standards – Specific habitats.

A.    Endangered, Threatened, and Sensitive Species.

1.    No development shall be allowed within a habitat conservation area or buffer with which state or federally endangered, threatened, or sensitive species have a primary association, except that which is provided for by a management plan established by the Washington State Department of Fish and Wildlife or applicable state or federal agency.

2.    Whenever activities are proposed adjacent to a habitat conservation area with which state or federally endangered, threatened, or sensitive species have a primary association, such area shall be protected through the application of protection measures in accordance with a critical areas report prepared by a qualified professional and approved by the city. Approval for alteration of land adjacent to the habitat conservation area or its buffer shall not occur prior to consultation with the Washington State Department of Fish and Wildlife for animal species, the Washington State Department of Natural Resources for plant species, and other appropriate federal or state agencies.

3.    Bald eagle habitat shall be protected pursuant to the Washington State Bald Eagle Protection Rules (WAC 232-12-292). Whenever activities are proposed adjacent to a verified nest territory or communal roost, a habitat management plan shall be developed by a qualified professional.

B.    Anadromous Fish.

1.    All activities, uses, and alterations proposed to be located in water bodies used by anadromous fish or in areas that affect such water bodies shall give special consideration to the preservation and enhancement of anadromous fish habitat, including, but not limited to, adhering to the following standards:

a.    Activities shall be timed to occur only during the allowable work window as designated by the Washington State Department of Fish and Wildlife for the applicable species;

b.    An alternative alignment or location for the activity is not feasible;

c.    The activity is designed so that it will not degrade the functions or values of the fish habitat or other critical areas;

d.    Shoreline erosion control measures shall be designed to use bioengineering methods or soft armoring techniques, according to an approved critical areas report; and

e.    Any impacts to the functions or values of the habitat conservation area are mitigated in accordance with an approved critical areas report.

2.    Structures that prevent the migration of salmonids shall not be allowed in the portion of water bodies currently or historically used by anadromous fish. Fish bypass facilities shall be provided that allow the upstream migration of adult fish and shall prevent fry and juveniles migrating downstream from being trapped or harmed.

3.    Fills, when authorized by the Bothell Shorelines Master Program, shall not adversely impact anadromous fish or their habitat or shall mitigate any unavoidable impacts and shall only be allowed for a water-dependent use.

C.    Wetland Habitats. All proposed activities within or adjacent to habitat conservation areas containing wetlands shall conform to the wetland development performance standards set forth in BMC 14.04.500 through 14.04.550. If non-wetlands habitat and wetlands are present at the same location, the provisions of this chapter or the wetlands chapter, whichever provides greater protection to the habitat, apply.

D.    Riparian Habitat Areas. Unless otherwise allowed in this chapter, all structures and activities shall be located outside of the riparian habitat area.

1.    Establishment of Riparian Habitat Areas. Riparian habitat areas shall be established for habitats that include aquatic and terrestrial ecosystems that mutually benefit each other and that are buffers located adjacent to rivers, perennial or intermittent streams, seeps, and springs.44

2.    Stream Buffer Widths. Standard stream buffer widths are shown in the table below. A stream buffer shall have the width recommended, unless a greater width is required pursuant to subsection (D)(3) of this section, or a lesser width is allowed pursuant to subsection (D)(4) of this section. Widths shall be measured outward in each direction, on the horizontal plane, from the ordinary high water mark, or from the top of bank, if the ordinary high water mark cannot be identified. Stream buffers should be sufficiently wide to achieve the full range of riparian and aquatic ecosystem functions, which include but are not limited to protection of in stream fish habitat through control of temperature and sedimentation in streams; preservation of fish and wildlife habitat; and connection of riparian wildlife habitat to other habitats.45

Stream Buffers
1

Stream Type

Standard Stream Buffer Widths

Type S; or shorelines of the state, or shorelines of statewide significance

100 feet*

Type F; or other salmonid bearing streams

100 feet

Type Np, or other, perennial, non-salmonid bearing streams

75 feet

Type Ns; or other intermittent, non-salmonid bearing streams

50 feet

1    While water typing is used here to classify riparian habitat areas, regulations regarding riparian habitat areas listed here are applicable to areas containing aquatic systems containing perennial or intermittent flowing water. See the definition for riparian habitat. Habitats associated with marine and standing water are by the general and other performance standards in this chapter.

*    Except that the main stem of North Creek located between 240th Street SE and 228th Street SE shall have a stream buffer width of 150 feet.

3.    Increased Stream Buffer Widths. Standard stream buffer widths shall be increased, as follows:

a.    When the director determines that the standard width is insufficient to prevent habitat degradation and to protect the structure and functions of the habitat area;

b.    When the frequently flooded area exceeds the standard stream buffer width, the stream buffer shall extend to the outer edge of the frequently flooded area;

c.    When the stream buffer is within an erosion or landslide hazard area, or buffer, the stream buffer width shall be the standard distance, or the erosion or landslide hazard area or buffer, whichever is greater.

4.    Decreased Stream Buffer Widths. Where a site’s topographic features would make establishment of the required buffer infeasible or where those or other physical site characteristics would make the buffer nonfunctional, and where the characteristics were not created through deliberate action on the part of the property owner, the required buffer may be reduced, up to 25 feet, if two or more of the following critical areas enhancement measures are implemented:

a.    The buffer is enhanced with non-invasive vegetation, especially that which would increase the value for fish and wildlife, increase streambank or slope stability, improve water quality, or provide aesthetic/recreational value; and/or

b.    Fish barriers are removed to restore accessibility to anadromous fish; and/or

c.    Fish habitat is enhanced using log structures incorporated as part of a fish habitat enhancement plan; and/or

d.    Wildlife habitat structures that are likely to be used by wildlife are introduced or enhanced, including but not limited to wood duck houses, bat boxes, resting platforms, snags, rootwads/stumps and birdhouses.

5.    Stream Buffer Width Averaging. The director may allow the standard stream buffer width to be reduced in accordance with a critical areas report only if:

a.    The width reduction will not reduce stream or habitat functions, including those of non-fish habitat;

b.    The width reduction will not degrade the habitat, including habitat for anadromous fish;

c.    The proposal will provide additional habitat protection;

d.    The total area contained in the stream buffer of each stream on the development proposal site is not decreased;

e.    The standard stream buffer width is not reduced by more than 25 percent in any one location;46

f.    The width reduction will not be located within another critical area or associated buffer; and

g.    The reduced stream buffer width is supported by the best available science.

6.    Riparian Habitat Mitigation. Mitigation of adverse impacts to riparian habitat areas shall result in equivalent functions and values on a per function basis, be located as near the alteration as feasible, and be located in the same subdrainage basin as the habitat impacted.

7.    Alternative Mitigation for Riparian Habitat Areas. The performance standards set forth in this subsection may be modified at the city’s discretion if the applicant demonstrates that greater habitat functions, on a per function basis, can be obtained in the affected sub-drainage basin as a result of alternative mitigation measures.

E.    Aquatic Habitat.47 The following specific activities may be permitted within a riparian habitat area, pond, lake, water of the state, or associated buffer when the activity complies with the provisions set forth in the Bothell Shorelines Master Program and subject to the standards of this subsection. The standards that provide the most protection to protected habitat and species shall apply.

1.    Clearing and Grading. When clearing and grading is permitted as part of an authorized activity or as otherwise allowed in these standards, the following shall apply:

a.    Grading is allowed only during the dry season, which is typically regarded as beginning on May 1st and ending on October 1st of each year; provided, that the city may extend or shorten the dry season on a case-by-case basis, determined on actual weather conditions.48

b.    Filling or modification of a wetland or wetland buffer is permitted only if it is conducted as part of an approved wetland alteration.

c.    The soil duff layer shall remain undisturbed to the maximum extent possible. Where feasible, any soil disturbed shall be redistributed to other areas of the project area.

d.    The moisture-holding capacity of the topsoil layer shall be maintained by minimizing soil compaction or reestablishing natural soil structure and infiltrative capacity on all areas of the project area not covered by impervious surfaces.

e.    Erosion and sediment control that meets or exceeds the standards set forth in the Bothell Shorelines Master Program shall be provided.

2.    Streambank Stabilization. Streambank stabilization to protect new structures from future channel migration is not permitted except when such stabilization is achieved through bio-engineering or soft armoring techniques in accordance with an approved critical areas report.

3.    Launching Ramps – Public or Private. Launching ramps may be permitted in accordance with an approved critical areas report that has demonstrated the following:

a.    The project will not result in increased beach erosion or alterations to, or loss of, shoreline substrate within one-quarter mile of the site;

b.    The ramp will not adversely impact critical fish or wildlife habitat areas or associated wetlands;

c.    Adequate mitigation measures ensure that there is no net loss of the functions or values of riparian habitat as a result of the ramp.

4.    Docks. Repair and maintenance of an existing dock or pier may be permitted in accordance with an approved critical areas report subject to the following:

a.    There is no increase in the use of materials creating shade for predator species;

b.    There is no expansion in overwater coverage;

c.    There is no new spanning of waters between three and 13 feet deep; and

d.    There is no use of toxic materials (such as creosote) that come in contact with the water.

5.    Roads, Trails, Bridges, and Rights-of-Way. Construction of trails, roadways, and minor road bridging, less than or equal to 30 feet wide, may be permitted in accordance with an approved critical areas report subject to the following standards:

a.    There is no other feasible alternative route with less impact on the environment;

b.    The crossing minimizes interruption of downstream movement of wood and gravel;

c.    Roads in riparian habitat areas or their buffers shall not run parallel to the water body;

d.    Trails shall be located on the outer edge of the riparian area or buffer, except for limited viewing platforms and crossings;

e.    Crossings, where necessary, shall only occur as near to perpendicular with the water body as possible;

f.    Mitigation for impacts is provided pursuant to a mitigation plan of an approved critical areas report;

g.    Road bridges are designed according to the Washington State Department of Fish and Wildlife Fish Passage Design at Road Culverts, 1999, and the National Marine Fisheries Service Guidelines for Salmonid Passage at Stream Crossings, 2000; and

h.    Trails and associated viewing platforms shall not be made of continuous impervious materials.

6.    Utility Facilities. New utility lines and facilities may be permitted to cross watercourses in accordance with an approved critical areas report, if they comply with the following standards:

a.    Fish and wildlife habitat areas shall be avoided to the maximum extent possible;

b.    Installation shall be accomplished by boring beneath the scour depth and hyporheic zone of the water body and channel migration zone, where feasible;

c.    The utilities shall cross at an angle greater than 60 degrees to the centerline of the channel in streams or perpendicular to the channel centerline whenever boring under the channel is not feasible;

d.    Crossings shall be contained within the footprint of an existing road or utility crossing where possible;

e.    The utility route shall avoid paralleling the stream or following a down-valley course near the channel; and

f.    The utility installation shall not increase or decrease the natural rate of shore migration or channel migration.

7.    Public Flood Protection Measures. New public flood protection measures and expansion of existing ones may be permitted, subject to the city’s review and approval of a critical areas report and the approval of a Federal Biological Assessment by the federal agency responsible for reviewing actions related to a federally listed species.

8.    In-stream Structures. In-stream structures, such as, but not limited to, high flow bypasses, sediment ponds, in-stream ponds, retention and detention facilities, tide gates, dams, and weirs, shall be allowed only as part of an approved watershed basin restoration project approved by the city and upon acquisition of any required state or federal permits. The structure shall be designed to avoid modifying flows and water quality in ways that may adversely affect habitat conservation areas.

9.    Storm Water Conveyance Facilities. Conveyance structures may be permitted in accordance with an approved critical areas report subject to the following standards:

a.    No other feasible alternatives with less impact exist;

b.    Mitigation for impacts is provided;

c.    Storm water conveyance facilities shall incorporate fish habitat features; and

d.    Vegetation shall be maintained and, if necessary, added adjacent to all open channels and ponds in order to retard erosion, filter out sediments, and shade the water.

10.    On-Site Sewage Systems and Wells.

a.    New on-site sewage systems and individual wells may be permitted in accordance with an approved critical areas report only if accessory to an approved residential structure, for which it is not feasible to connect to a public sanitary sewer system.

b.    Repairs to failing on-site sewage systems associated with an existing structure shall be accomplished by utilizing one of the following methods that result in the least impact:

i.    Connection to an available public sanitary sewer system;

ii.    Replacement with a new on-site sewage system located in a portion of the site that has already been disturbed by development and is located landward as far as possible, provided the proposed sewage system is in compliance with the King or Snohomish County health district (as applicable); or

iii.    Repair to the existing on-site septic system. (Ord. 1946 § 3, 2005).


1

    Distance of 300 feet is based on maximum recommended riparian habitat area width from the Washington State Department of Fish and Wildlife’s Management Recommendations for Washington’s Priority Habitats: Riparian, 1997.


2

    Distance of 200 feet is a suggested distance to ensure that activities within the critical area recharge area are included under this chapter, even when the exact boundaries of the critical aquifer recharge area are not known at the time of application.


3

    See WAC 222-16-030(5)(d) and WAC 222-16-031(6)(d).


4

    See WAC 173-26-020(34).


5

    See Washington State Department of Fish and Wildlife’s Management Recommendations for Washington’s Priority Habitats – Riparian, 1997, page 4.


6

    See RCW 90.84.010(9).


7

    See RCW 36.70A.020(12).


8

    Distance of 2,640 feet is based on the Washington State Department of Fish and Wildlife’s Management Recommendations for Washington’s Priority Species, Volume IV: Birds, 2000.


9

    Distance of 300 feet is based on maximum recommended riparian habitat area width from Washington State Department of Fish and Wildlife’s Management Recommendations for Washington’s Priority Habitats: Riparian, 1997.


10

    Distance of 200 feet is a suggested distance to ensure that activities within the critical aquifer recharge area are included under the application of this chapter, even when the exact boundaries of the critical aquifer recharge area are not known at the time of application.


11

    See RCW 36.70A.172(1).


12

    Jurisdictions are advised to include a reference to locally adopted lists of invasive and noxious weeds. Sometimes these are adopted at the county level.


13

    More information on commercial and residential use of chemicals can be found in the Washington State Department of Ecology’s Guidance Document for Establishment of Critical Aquifer Recharges Areas Ordinances, Version 3.0, Publication No. 97-30; and from the Washington State Department of Agriculture, http:agr.wa.gov/.


14

    Primary protection of the critical area should be accomplished through the designation of a sufficiently wide buffer area based on science and site-specific conditions, not by adhering to the building setback shown here. The building setback distance is intended to provide adequate room for construction, use, and access without infringing upon the critical area or buffer. Fifteen feet is a commonly required setback distance from critical areas and buffers; a larger setback may be appropriate is some instances. Jurisdictions should consider revisions to their land use codes so that typical setbacks are measured from the critical area or buffer. For example, if a residential zone requires 30-foot rear yards, that setback should generally be measured from the critical area buffer.


15

    See WAC 365-190-080(1)(a).


16

    Critical area reports should consider wetlands and other critical areas within 300 feet due to the maximum potential buffer size for wetlands. Critical area size and characteristics beyond the project area may be estimated through aerial photographic interpretation and discussions with agency staff if the adjacent property owner denies access.


17

    Wetland buffer widths from Vegetated Buffers in the Coastal Zone: A Summary Review and Bibliography, University of Rhode Island Graduate School of Oceanography, 1994, Technical Report No. 2064; The Science of Wetland Buffers and its Implications for the Management of Wetlands, The Evergreen State College, Andy McMillan, 2000; and Wetland Buffers: Use and Effectiveness, Washington State Department of Ecology, 1992, Publication No. 92-10.


18

    Wetland mitigation ratios are from Wetland Replacement Ratios: Defining Equivalency, Washington State Department of Ecology, 1992, Publication No. 92-08.


19

    See WAC 365-190-080(4)(c).


20

    See WAC 365-190-080(4)(d)(i).


21

    See WAC 365-190-080(4)(d)(ii).


22

    See WAC 365-190-080(4)(d)(iii).


23

    See WAC 365-190-080(4)(d)(iv).


24

    See WAC 365-190-080(4)(d)(v).


25

    See WAC 365-190-080(4)(d)(vi).


26

    See WAC 365-190-080(4)(d)(vii).


27

    See WAC 365-190-080(4)(d)(viii).


28

    See WAC 365-190-080(4)(d)(ix).


29

    See WAC 365-190-080(4)(e).


30

    A distance of 200 feet is suggested so that geological features that might affect the proposal are included in the critical areas report. It may be necessary to include features further than 200 feet from the project area in some instances, such as a series of related geological features that extend more than 200 feet.


31

    See WAC 365-190-080(5)(a)(i).


32

    See WAC 365-190-080(5)(c)(ii).


33

    See WAC 365-190-030(19).


34

    See WAC 232-12-297.


35

    See WAC 365-190-080(5)(a)(v).


36

    See WAC 365-190-080(5)(c)(v).


37

    See WAC 365-190-080(5)(a)(vi).


38

    See WAC 365-190-080(5)(a)(vii).


39

    See WAC 365-190-080(5)(a)(viii).


40

    Critical areas reports for habitat areas should consider protected habitats and species and their buffers located within 300 feet. Three hundred feet is a suggested distance so that habitat areas that might be affected by the proposal are included in the critical areas report. Three hundred feet allowed for the potential riparian habitat area widths and for buffers/zones that may not be accurately mapped at the time of application.


41

    See WAC 365-190-080(5)(b)(i).


42

    See WAC 365-190-080(5)(b)(v).


43

    The Washington State Department of Fish and Wildlife recommends not allowing habitat buffers to be reduced by more than 25 percent.


44

    See Washington State Department of Fish and Wildlife’s Management Recommendations for Washington’s Priority Habitats: Riparian, 1997, page xi.


45

    Recommended riparian habitat widths are from the Washington State Department of Fish and Wildlife’s Management Recommendations for Washington’s Priority Habitats: Riparian, 1997, page xii.


46

    The Washington State Department of Fish and Wildlife recommends not allowing riparian habitat area widths to be reduced by more than 25 percent.


47

    The performance standards for riparian habitat areas, ponds, lakes, waters of the state, and marine habitat are partially derived from the Pierce County Critical Areas Development Regulations, 2002.


48

    Applicable in western Washington.